Conduct of Buyer. Buyer agrees that, from the date of this Agreement until the earlier of the Closing and the valid termination of this Agreement in accordance with ARTICLE IX, except: (w) as required or expressly permitted by this Agreement or the transactions contemplated hereby; (x) as set forth in Section 5.13 of the Disclosure Schedules, (y) as required by applicable Law (including by any Governmental Authority or Franchise Law); or (z) as Seller shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Buyer shall not and shall cause each of its Subsidiaries not to: (a) amend, adopt any amendment or otherwise change Buyer’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws as in effect on the date hereof or other applicable governing instruments or organizational documents in any manner that would materially and adversely affect the holders of the BFI Common Stock or BFI Preferred Stock; (b) make any acquisition of (whether by merger, consolidation or acquisition of stock or equity interests or substantially all of the assets), or make any investment in any interest in, any corporation, partnership or other business organization or division thereof, in each case that would reasonably be expected to prevent, impede, or materially delay the consummation of the transactions contemplated by this Agreement; (c) issue, sell, grant, pledge, transfer, lease, encumber or dispose of (or authorize the issuance, sale, grant, transfer, lease, encumbrance or disposition of), any shares of capital stock, voting securities or other ownership interest, or any options, warrants, convertible securities or other rights of any kind to acquire or receive any shares of capital stock, any voting securities or other ownership interest (including stock appreciation rights, phantom stock or similar instruments), of Buyer or any of its Subsidiaries, except: (i) for any issuance, sale or disposition to Buyer or a Subsidiary of Buyer by any Subsidiary of Buyer; (ii) the issuance, sale or disposition of any securities of any of the Subsidiaries of Buyer in connection with a bona fide financing; or (iii) for any issuance of BFI Common Stock upon the settlement of outstanding restricted stock units or the exercise of outstanding warrants; (d) reclassify, combine, split or subdivide any shares of BFI Common Stock or BFI Preferred Stock or designate any series of BFI Preferred Stock other than the BFI Series A Preferred Stock for purposes of complying with Buyer’s obligations under this Agreement; (e) establish a record date for, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for any dividend or distribution by a wholly owned Subsidiary of Buyer to Buyer or any wholly owned Subsidiary of Buyer); (f) become party to or approve or adopt any stockholder rights plan or “poison pill” agreement or similar takeover protection that would apply to Seller or the transactions contemplated hereby; (g) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or take any action with respect to any securities owned by such Person that would reasonably be expected to prevent, materially impede or materially delay the consummation of the transactions contemplated by this Agreement; (h) amend in any material respect, renew, waive any material right under, consent to a transfer or terminate (except in the event the term thereof ends) any material Franchise Agreement to which Buyer is a party; provided, however, that the foregoing shall not prohibit Buyer from amending, renewing, terminating or extending Franchise Agreements in the ordinary course of business; (i) enter into any Franchise Agreement without providing the prospective Franchisee such information concerning the transactions contemplated hereby, if required by applicable Franchise Laws, whether in an amended FDD or otherwise; or (j) agree, authorize or commit to do any of the foregoing actions described in this Section 5.14. Notwithstanding the foregoing, Buyer shall not be prohibited from operating the BFI Business in the ordinary course of business, including with respect to the acquisition or closure of “BurgerFi” Restaurants or the execution of a lease agreement, including with a Related Party, in relation to office space for the BFI Companies and/or the ACFP Companies.
Appears in 1 contract
Samples: Stock Purchase Agreement (BurgerFi International, Inc.)
Conduct of Buyer. Buyer agrees that, from the date of this Agreement until the earlier of the Closing and the valid termination of this Agreement in accordance with ARTICLE IX, except: (w) as required or expressly permitted by this Agreement or the transactions contemplated hereby; (x) as Except for matters set forth in Section 5.13 6.2 of the Buyer Disclosure Schedules, (y) Letter or as required otherwise contemplated by applicable Law (including by any Governmental Authority or Franchise Law); specifically provided in this Agreement or (z) as Seller shall otherwise consent subsequently consented to in writing (which consent shall not be unreasonably withheldby the Company, conditioned or delayed)during the Pre-Closing Period, Buyer shall not use its reasonable best efforts to conduct its business in the ordinary and usual course consistent with past practice. Without limiting the generality of the foregoing, and except for matters set forth in Section 6.2 of the Buyer Disclosure Letter or as expressly contemplated or permitted by this Agreement, without the prior written consent of the Company, Buyer shall not, and shall cause each of not permit its Subsidiaries not to:
(a) amend, adopt any amendment change in the organizational documents of Buyer or any Subsidiary;
(b) issue, deliver, sell, grant, pledge or otherwise change dispose of or encumber more than 50,000 shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities (other than grants or issuances pursuant to and in accordance with the terms of Buyer’s Amended 's equity incentive plans, employee stock purchase plans and Restated Certificate of Incorporation and Amended and Restated Bylaws stockholder rights plan or other current Buyer agreements, in each case as in effect on the date hereof or other applicable governing instruments or organizational documents in any manner that would materially and adversely affect the holders of the BFI Common Stock or BFI Preferred Stock;this Agreement);
(bc) make any acquisition sell or otherwise dispose of (whether by merger, consolidation or acquisition of stock or equity interests all or substantially all of the assets)its assets or securities, or make any investment in any interest inincluding by merger, any corporationconsolidation, partnership asset sale or other business organization or division thereof, in each case that would reasonably be expected to prevent, impede, or materially delay the consummation of the transactions contemplated by this Agreement;
(c) issue, sell, grant, pledge, transfer, lease, encumber or dispose of (or authorize the issuance, sale, grant, transfer, lease, encumbrance or disposition of), any shares of capital stock, voting securities or other ownership interest, or any options, warrants, convertible securities or other rights of any kind to acquire or receive any shares of capital stock, any voting securities or other ownership interest combination (including stock appreciation rights, phantom stock or similar instrumentsby formation of a material Buyer joint venture), of Buyer or any of its Subsidiaries, except: (i) for any issuance, sale or disposition to Buyer or a Subsidiary of Buyer by any Subsidiary of Buyer; (ii) the issuance, sale or disposition of any securities of any of the Subsidiaries of Buyer in connection with a bona fide financing; or (iii) for any issuance of BFI Common Stock upon the settlement of outstanding restricted stock units or the exercise of outstanding warrants;
(d) reclassifydeclare, combine, split or subdivide any shares of BFI Common Stock or BFI Preferred Stock or designate any series of BFI Preferred Stock other than the BFI Series A Preferred Stock for purposes of complying with Buyer’s obligations under this Agreement;
(e) establish a record date for, declare, set aside, make aside or pay any dividend or other distribution, payable distribution (whether in cash, stock, stock or property or otherwise, with any combination thereof) in respect to any of its capital stock (except for any dividend or distribution by a wholly owned Subsidiary of Buyer to Buyer or any wholly owned Subsidiary of Buyer);Securities;
(f) become party to or approve or adopt any stockholder rights plan or “poison pill” agreement or similar takeover protection that would apply to Seller or the transactions contemplated hereby;
(ge) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganizationreorganization of Buyer or any of its Subsidiaries, or take any action enter into a letter of intent or agreement in principle with respect to thereto (other than the Merger);
(f) acquire by merging or consolidating with, or by purchasing all or a substantial portion of the assets or stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof, if the consideration paid by Buyer in such transaction is in the form of shares of Buyer's capital stock or any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities;
(g) (i) incur or assume any indebtedness for borrowed money or guarantee any indebtedness for borrowed money, other than letters of credit or similar arrangements issued for the benefit of suppliers and manufacturers in the ordinary course of business consistent with past practice, (ii) issue, sell or amend any debt securities or options, warrants, calls or other rights to acquire any debt securities of Buyer, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing or (iii) make any loans, advances (other than routine advances in the ordinary course of business consistent with past practice) or capital contributions to, or investments in (by property transfers, purchase of securities or otherwise), any Person, other than a direct or indirect wholly owned Subsidiary of Buyer; provided, however, that Buyer may, in the ordinary course of business consistent with past practice, continue to invest in money market accounts and U.S. treasury bonds and other securities guaranteed by such Person the U.S. government;
(h) take or cause to be taken any action, whether before or after the Effective Time, that would reasonably be expected to prevent, materially prevent or impede or materially delay the consummation Merger from qualifying as a reorganization within the meaning of Section 368(a) of the transactions contemplated by this Agreement;
(h) amend in any material respect, renew, waive any material right under, consent to a transfer or terminate (except in the event the term thereof ends) any material Franchise Agreement to which Buyer is a partyCode; provided, however, that the foregoing shall not prohibit Buyer from amending, renewing, terminating or extending Franchise Agreements in the ordinary course of business;or
(i) enter into authorize any Franchise Agreement without providing the prospective Franchisee such information concerning the transactions contemplated herebyof, if required by applicable Franchise Lawsor commit or agree, whether in an amended FDD writing or otherwise; or
(j) , to take any of, the foregoing actions or take any action or agree, authorize in writing or commit otherwise, to do take any action, that would cause (i) any of the foregoing actions described representations and warranties of Buyer or Merger Sub to be untrue in any material respect or (ii) any of the conditions to the Merger set forth in this Section 5.14. Notwithstanding the foregoing, Buyer shall Agreement not to be prohibited from operating the BFI Business in the ordinary course of business, including with respect to the acquisition or closure of “BurgerFi” Restaurants or the execution of a lease agreement, including with a Related Party, in relation to office space for the BFI Companies and/or the ACFP Companiessatisfied.
Appears in 1 contract
Conduct of Buyer. Buyer agrees that, from the date of this Agreement until the earlier of the Closing and the valid termination of this Agreement in accordance with ARTICLE IX, except: (w) as required or expressly permitted by this Agreement or the transactions contemplated hereby; (x) as Except for matters set forth in Section 5.13 6.2 of the Buyer Disclosure Schedules, (y) Letter or as required otherwise contemplated by applicable Law (including by any Governmental Authority or Franchise Law); specifically provided in this Agreement or (z) as Seller shall otherwise consent subsequently consented to in writing (which consent shall not be unreasonably withheldby the Company, conditioned or delayed)during the Pre-Closing Period, Buyer shall not use its reasonable best efforts to conduct its business in the ordinary and usual course consistent with past practice. Without limiting the generality of the foregoing, and except for matters set forth in Section 6.2 of the Buyer Disclosure Letter or as expressly contemplated or permitted by this Agreement, without the prior written consent of the Company, Buyer shall not, and shall cause each of not permit its Subsidiaries not to:
(a) amend, adopt any amendment change in the organizational documents of Buyer or any Subsidiary;
(b) issue, deliver, sell, grant, pledge or otherwise change dispose of or encumber more than 50,000 shares of its capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities (other than grants or issuances pursuant to and in accordance with the terms of Buyer’s Amended equity incentive plans, employee stock purchase plans and Restated Certificate of Incorporation and Amended and Restated Bylaws stockholder rights plan or other current Buyer agreements, in each case as in effect on the date hereof or other applicable governing instruments or organizational documents in any manner that would materially and adversely affect the holders of the BFI Common Stock or BFI Preferred Stock;this Agreement);
(bc) make any acquisition sell or otherwise dispose of (whether by merger, consolidation or acquisition of stock or equity interests all or substantially all of the assets)its assets or securities, or make any investment in any interest inincluding by merger, any corporationconsolidation, partnership asset sale or other business organization or division thereof, in each case that would reasonably be expected to prevent, impede, or materially delay the consummation of the transactions contemplated by this Agreement;
(c) issue, sell, grant, pledge, transfer, lease, encumber or dispose of (or authorize the issuance, sale, grant, transfer, lease, encumbrance or disposition of), any shares of capital stock, voting securities or other ownership interest, or any options, warrants, convertible securities or other rights of any kind to acquire or receive any shares of capital stock, any voting securities or other ownership interest combination (including stock appreciation rights, phantom stock or similar instrumentsby formation of a material Buyer joint venture), of Buyer or any of its Subsidiaries, except: (i) for any issuance, sale or disposition to Buyer or a Subsidiary of Buyer by any Subsidiary of Buyer; (ii) the issuance, sale or disposition of any securities of any of the Subsidiaries of Buyer in connection with a bona fide financing; or (iii) for any issuance of BFI Common Stock upon the settlement of outstanding restricted stock units or the exercise of outstanding warrants;
(d) reclassifydeclare, combine, split or subdivide any shares of BFI Common Stock or BFI Preferred Stock or designate any series of BFI Preferred Stock other than the BFI Series A Preferred Stock for purposes of complying with Buyer’s obligations under this Agreement;
(e) establish a record date for, declare, set aside, make aside or pay any dividend or other distribution, payable distribution (whether in cash, stock, stock or property or otherwise, with any combination thereof) in respect to any of its capital stock (except for any dividend or distribution by a wholly owned Subsidiary of Buyer to Buyer or any wholly owned Subsidiary of Buyer);Securities;
(f) become party to or approve or adopt any stockholder rights plan or “poison pill” agreement or similar takeover protection that would apply to Seller or the transactions contemplated hereby;
(ge) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganizationreorganization of Buyer or any of its Subsidiaries, or take any action enter into a letter of intent or agreement in principle with respect to thereto (other than the Merger);
(f) acquire by merging or consolidating with, or by purchasing all or a substantial portion of the assets or stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof, if the consideration paid by Buyer in such transaction is in the form of shares of Buyer’s capital stock or any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities;
(g) (i) incur or assume any indebtedness for borrowed money or guarantee any indebtedness for borrowed money, other than letters of credit or similar arrangements issued for the benefit of suppliers and manufacturers in the ordinary course of business consistent with past practice, (ii) issue, sell or amend any debt securities or options, warrants, calls or other rights to acquire any debt securities of Buyer, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing or (iii) make any loans, advances (other than routine advances in the ordinary course of business consistent with past practice) or capital contributions to, or investments in (by property transfers, purchase of securities or otherwise), any Person, other than a direct or indirect wholly owned Subsidiary of Buyer; provided, however, that Buyer may, in the ordinary course of business consistent with past practice, continue to invest in money market accounts and U.S. treasury bonds and other securities guaranteed by such Person the U.S. government;
(h) take or cause to be taken any action, whether before or after the Effective Time, that would reasonably be expected to prevent, materially prevent or impede or materially delay the consummation Merger from qualifying as a reorganization within the meaning of Section 368(a) of the transactions contemplated by this Agreement;
(h) amend in any material respect, renew, waive any material right under, consent to a transfer or terminate (except in the event the term thereof ends) any material Franchise Agreement to which Buyer is a partyCode; provided, however, that the foregoing shall not prohibit Buyer from amending, renewing, terminating or extending Franchise Agreements in the ordinary course of business;or
(i) enter into authorize any Franchise Agreement without providing the prospective Franchisee such information concerning the transactions contemplated herebyof, if required by applicable Franchise Lawsor commit or agree, whether in an amended FDD writing or otherwise; or
(j) , to take any of, the foregoing actions or take any action or agree, authorize in writing or commit otherwise, to do take any action, that would cause (i) any of the foregoing actions described representations and warranties of Buyer or Merger Sub to be untrue in any material respect or (ii) any of the conditions to the Merger set forth in this Section 5.14. Notwithstanding the foregoing, Buyer shall Agreement not to be prohibited from operating the BFI Business in the ordinary course of business, including with respect to the acquisition or closure of “BurgerFi” Restaurants or the execution of a lease agreement, including with a Related Party, in relation to office space for the BFI Companies and/or the ACFP Companiessatisfied.
Appears in 1 contract
Samples: Merger Agreement (Curagen Corp)
Conduct of Buyer. Buyer agrees that, from the date of this Agreement until the earlier of the Closing and the valid termination of this Agreement in accordance with ARTICLE IX, except: (w) as required or expressly permitted by this Agreement or the transactions contemplated hereby; (x) as set forth in Section 5.13 of the Disclosure Schedules, (y) as required by applicable Law (including by any Governmental Authority or Franchise Law); or (z) as Seller shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Buyer shall not and shall cause each of its Subsidiaries not to:
(a) amend, adopt any amendment or otherwise change Buyer’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws as in effect on the date hereof or other applicable governing instruments or organizational documents in any manner that would materially and adversely affect the holders of the BFI Common Stock or BFI Preferred Stock;Stock;
(b) make any acquisition of (whether by merger, consolidation or acquisition of stock or equity interests or substantially all of the assets), or make any investment in any interest in, any corporation, partnership or other business organization or division thereof, in each case that would reasonably be expected to prevent, impede, or materially delay the consummation of the transactions contemplated by this Agreement;Agreement;
(c) issue, sell, grant, pledge, transfer, lease, encumber or dispose of (or authorize the issuance, sale, grant, transfer, lease, encumbrance or disposition of), any shares of capital stock, voting securities or other ownership interest, or any options, warrants, convertible securities or other rights of any kind to acquire or receive any shares of capital stock, any voting securities or other ownership interest (including stock appreciation rights, phantom stock or similar instruments), of Buyer or any of its Subsidiaries, except: (i) for any issuance, sale or disposition to Buyer or a Subsidiary of Buyer by any Subsidiary of Buyer; (ii) the issuance, sale or disposition of any securities of any of the Subsidiaries of Buyer in connection with a bona fide financing; or (iii) for any issuance of BFI Common Stock upon the settlement of outstanding restricted stock units or the exercise of outstanding warrants;
(d) reclassify, combine, split or subdivide any shares of BFI Common Stock or BFI Preferred Stock or designate any series of BFI Preferred Stock other than the BFI Series A Preferred Stock for purposes of complying with Buyer’s obligations under this Agreement;Agreement;
(e) establish a record date for, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for any dividend or distribution by a wholly owned Subsidiary of Buyer to Buyer or any wholly owned Subsidiary of Buyer);Buyer);
(f) become party to or approve or adopt any stockholder rights plan or “poison pill” agreement or similar takeover protection that would apply to Seller or the transactions contemplated hereby;hereby;
(g) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or take any action with respect to any securities owned by such Person that would reasonably be expected to prevent, materially impede or materially delay the consummation of the transactions contemplated by this Agreement;Agreement;
(h) amend in any material respect, renew, waive any material right under, consent to a transfer or terminate (except in the event the term thereof ends) any material Franchise Agreement to which Buyer is a party; provided, however, that the foregoing shall not prohibit Buyer from amending, renewing, terminating or extending Franchise Agreements in the ordinary course of business;
(i) enter into any Franchise Agreement without providing the prospective Franchisee such information concerning the transactions contemplated hereby, if required by applicable Franchise Laws, whether in an amended FDD or otherwise; or
(j) agree, authorize or commit to do any of the foregoing actions described in this Section 5.14. Notwithstanding the foregoing, Buyer shall not be prohibited from operating the BFI Business in the ordinary course of business, including with respect to the acquisition or closure of “BurgerFi” Restaurants or the execution of a lease agreement, including with a Related Party, in relation to office space for the BFI Companies and/or the ACFP Companies.
Appears in 1 contract
Samples: Stock Purchase Agreement (BurgerFi International, Inc.)
