Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to: (a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby); (b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock; (c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business; (d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement; (e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent; (f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or (g) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 4 contracts
Samples: Merger Agreement, Merger Agreement (Tribune Media Co), Merger Agreement (Sinclair Broadcast Group Inc)
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 7.01 of the Parent Disclosure LetterSchedule, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices practice and (ii) use its commercially reasonable best efforts to maintain the Parent Station Licenses preserve intact its business organizations and the rights of it and its Subsidiaries thereunderrelationships with Third Parties. Without limiting the generality of the foregoing, from the date of this Agreement hereof until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IXTime, except as expressly contemplated by this Agreement, as set forth in Section 6.1 7.01 of the Parent Disclosure LetterSchedule, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Applicable Law, from the date hereof until the Effective Time Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate the articles of incorporation, incorporation or bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent in a manner that would not or would not reasonably be expected to prevent, materially delay or materially impair have a material and adverse impact on the consummation value of the Merger or the transactions contemplated hereby)Parent Class A Common Stock;
(b) without limiting the Company’s obligations under Section 8.01 (i) other than (x) dividends and other distributions by a direct including the last sentence of Section 8.01(a)), split, combine or indirect Subsidiary reclassify any shares of the Parent to capital stock of Parent or any direct of its Subsidiaries or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of Parent or its Subsidiaries, or make redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any other distributions in respect ofParent Securities, except for (i) dividends by any of its capital stock or other equity securitieswholly-owned Subsidiaries, (ii) split, recapitalize, subdivide, combine or reclassify the regular quarterly cash dividends by Parent with customary record and payment dates on shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance not in excess of any other securities in respect of$0.225 per share per quarter, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), as such amount may be increased for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards 2015 in the ordinary course of businessbusiness consistent with past practice; and (iii) repurchases of shares of Parent Stock at then prevailing market prices pursuant to Parent’s share repurchase program as in effect from time to time;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(ec) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each caserestructuring, of Parent recapitalization or any material Subsidiary of Parentreorganization;
(fd) incur knowingly and intentionally take any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as action that would not reasonably be expected to have an adverse impact on make any representation or delay warranty of Parent hereunder inaccurate in any material respect at, or immediately prior to, the FinancingEffective Time; or
(ge) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 4 contracts
Samples: Merger Agreement, Merger Agreement, Merger Agreement (Comcast Corp)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IXAgreement, except (x) as otherwise expressly permitted or contemplated required by this AgreementApplicable Law, (y) as set forth in Section 6.1 7.1 of the Parent Disclosure LetterSchedule or (z) as otherwise required or expressly permitted by this Agreement, as consented to unless the Company shall otherwise consent in writing by the Company (such with email being sufficient), which consent shall not to be unreasonably withheld, conditioned or delayeddelayed and such consent to be deemed given if the Company provides no written response (with email being sufficient) or as required within three (3) Business Days after a written request by applicable LawParent for such consent, Parent shallshall not, and shall cause each of its Subsidiaries not to:
(a) adopt or propose any material change to the Parent Organizational Documents in a manner that would adversely affect the economic benefits of the Integrated Mergers to the holders of shares of Company Common Stock or if such actions would or could be reasonably expected to impede or delay the Integrated Mergers;
(ib) conduct split, combine or reclassify any shares of its business in all material respects capital stock (other than transactions (A) solely among Parent and one or more of its wholly owned Subsidiaries or (B) solely among the Parent’s wholly owned Subsidiaries);
(c) with respect to Parent only, amend any term or alter any rights of any of its outstanding equity securities;
(d) other than in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, or pledge or otherwise encumber any shares of its capital stock or any Parent Securitiessecurities convertible into or exercisable for, or any rights, warrants, options to acquire or other derivative instruments with respect to, any such capital stock or any such convertible securities, other than (u) issuances the issuance, vesting or settlement of up to 24,630,493 shares of Parent Common Stock (Equity Awards in accordance with the present terms of the Parent Equity Awards, and other than in connection with the Financing;
(e) declare, set aside or pay any issuance that dividend or make any other distribution (whether in cash, shares or property, or any combination thereof) in respect of any shares of its capital stock or other securities (except for dividends or distributions by a Subsidiary of Parent to Parent or another wholly owned Subsidiary of Parent);
(f) take (or fail to take) any action which action (or failure to act) would reasonably be expected to delay cause the consummation Integrated Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of businessCode;
(dg) make any acquisition acquire (whether including by merger, consolidation consolidation, or acquisition of stock or assets) of any interest in any Person corporation, partnership, other business organization or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair (other than acquisitions of products in the consummation ordinary course of the Mergerbusiness) of any such entity, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on impede or delay in any material respect the FinancingTransactions; or
(gh) agree, resolve commit or commit publicly propose to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 3 contracts
Samples: Merger Agreement (WillScot Mobile Mini Holdings Corp.), Merger Agreement (McGrath Rentcorp), Merger Agreement (WillScot Mobile Mini Holdings Corp.)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IXTime, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 with the prior written consent of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law), Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated permitted or required by this Agreement, as may be required by applicable law or as set forth in Section 6.1 of the Parent Disclosure LetterSchedules, as consented to Parent and its Subsidiaries shall conduct their business in writing a manner not involving the entry by Parent or its Subsidiaries into lines of businesses that are materially different from the lines of businesses of Parent and its Subsidiaries on the date of this Agreement. Without limiting the generality of the foregoing, except with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed) ), as expressly permitted or required by this Agreement, as may be required by applicable Lawlaw, or as set forth in Section 6.1 of the Parent Disclosure Schedules, from the date of this Agreement until the Effective Time, Parent shall not, nor shall it Parent permit any of its Subsidiaries to:
(a) amend its adopt or propose any change in the certificate of incorporation, bylaws incorporation or other similar organizational documents (other than amendments to the organizational documents by-laws of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby)Parent;
(b) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent;
(c) (i) other than (x) dividends and other distributions by a direct split, combine, subdivide or indirect Subsidiary reclassify Parent’s outstanding shares of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent capital stock, or (yii) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution payable in cash, stock or make any other distributions in property with respect of, any of its to Parent’s capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than regular quarterly cash dividends payable by Parent (including any increases thereof consistent with past practice or changes thereto as described in Section 6.1(b) of the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iiiDisclosure Schedules), for (A) redemptionsand in any case not including any special dividend; provided, repurchases however, that Parent shall not declare, set aside or acquisitions pay any dividend except in connection with the exercise, vesting or settlement of Parent Equity Awardsaccordance with, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, foregoing shall not restrict any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, dividend declared and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement paid in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) belowwith, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of businessSection 7.11;
(d) make enter into (or agree to enter into) any acquisition, joint venture, exclusive arrangement or other similar arrangement, or any agreement to effect, or any letter of intent or similar document contemplating, any acquisition (whether including by merger, consolidation or acquisition of stock acquisition), joint venture, exclusive arrangement or assets) of any interest in any Person or any division or assets thereof other similar arrangement, that would reasonably be expected to prevent, materially delay delay, materially interfere with or materially impair impede the consummation of the MergerMerger and the Transactions, except for including, any acquisition such action that would reasonably be expected to prevent, materially impede or materially delay the ability of the parties to (whether by mergery) obtain the expiration or termination of the waiting period under the HSR Act or any other applicable antitrust laws, consolidation or acquisition (z) obtain any authorizations, consents, orders, and approvals of stock any governmental body, agency or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolutionauthority, in each case, necessary for the consummation of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, the Merger and the other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the FinancingTransactions; or
(ge) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 3 contracts
Samples: Merger Agreement (Hess Corp), Merger Agreement (Hess Corp), Merger Agreement (Chevron Corp)
Conduct of Parent. From Except with the date of this Agreement until the earlier to occur prior written consent of the Effective Time and the termination of this Agreement in accordance with Article IXCompany (which consent shall not be unreasonably withheld, except conditioned or delayed), as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 7.01 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) Letter or as required by applicable Applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IXTime, except as expressly contemplated by this Agreementneither Parent, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned HoldCo or delayed) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries toMerger Sub shall:
(a) amend its certificate articles of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not whether by merger, consolidation or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated herebyotherwise);
(b) (i) other than split, combine or reclassify any shares, (xii) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, shares or make property or any other distributions combination thereof) in respect of, any of its capital stock or other equity securitiesshare capital, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) such dividends or distributions paid at levels approved by Parent’s shareholders or (iii) purchaseredeem, redeem repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any shares of shares of Parent Common Stock Securities or any Parent Class B StockSubsidiary Securities, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions other than in connection with any share buyback or similar program approved by the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common StockBoard;
(ci) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent SecuritiesRegistered Shares, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares (A) share options, warrants or other equity compensation arrangements in the ordinary course of Parent Common Stock in connection business consistent with the Mergerpast practices, (wB) the issuance of shares of any Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock Registered Shares upon the exercise of stock options granted by Parent share options, warrants or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, equity compensation arrangements that are (A) outstanding on the date of this Agreement or issued in compliance with the preceding clause (A), in each case in accordance with the applicable terms thereof on the date of this Agreement those options, warrants or (B) granted following the date hereof in accordance with clause (z) belowother equity compensation arrangements, (yC) if required by an employment agreement with an employee of any Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected Subsidiary Securities to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material other Subsidiary of Parent;
, (fD) incur shares upon the conversion, exercise or exchange of the Parent Bonds or any indebtedness for borrowed money portion of the Debt Financing or guarantees thereof(E) shares pursuant to any merger, other than intercompany indebtedness business combination transaction or as would not reasonably be expected to have an adverse impact on or delay the Financingcorporate acquisition; or
(gd) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Transocean Ltd.), Merger Agreement (Transocean Ltd.)
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement or the Contribution Agreement or the Investment Agreement, to effect the Equity Exchange, the Equity Issuance, the Bright House Transactions, or as set forth in Section 6.1 7.01 of the Parent Disclosure LetterSchedule, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) to, conduct its business in all material respects in the ordinary course of business consistent with past practices practice and use its commercially reasonable efforts to (i) preserve intact its business organization, (ii) use maintain in effect all of its reasonable best efforts to material foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations, and (iii) maintain the Parent Station Licenses its existing relationships with its material customers, lenders, suppliers and the rights of others having material business relationships with it and its Subsidiaries thereunderwith Governmental Authorities with jurisdiction over Parent’s operations. Without limiting the generality of the foregoing, from the date of this Agreement hereof until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IXTime, except as expressly contemplated by this Agreement, as set forth in Section 6.1 7.01 of the Parent Disclosure LetterSchedule, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Applicable Law, from the date hereof until the Effective Time Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not whether by merger, consolidation or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated herebyotherwise);
(b) (i) other than (x) dividends and other distributions by a direct split, combine or indirect Subsidiary reclassify any shares of the Parent to capital stock of Parent or any direct of its Subsidiaries or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock, rights to acquire stock or property or any combination thereof) in respect of the capital stock of Parent or its Subsidiaries, or make redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any other distributions in respect ofParent Securities or Parent Subsidiary Securities, except for (i) dividends by any of its capital stock or other equity securitieswholly owned Subsidiaries, (ii) splitredemptions, recapitalizerepurchases or other acquisitions or offers to redeem, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect ofrepurchase, or otherwise acquire any Parent Securities in substitution forconnection with the vesting or settlement of equity-based compensation, outstanding shares of Parent Common Stock or Parent Class B Stock and (other than the issuance of shares of Parent Common Stock upon conversion iii) repurchases of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent A Common Stock or Parent Class B Stock, except, in the case ordinary course of this clause business consistent with past practices (iii), for (Aincluding as to volume) redemptions, repurchases or acquisitions at then prevailing market prices pursuant to Parent’s share repurchase program as in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stockeffect from time to time;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent SecuritiesSecurities or Parent Subsidiary Securities for gross consideration (without taking into account any underwriting discount or similar discounts or fees) for less than the market value of such securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement equity-based compensation or (B) granted following pursuant to the date hereof in accordance with clause Stockholders Agreement (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards as defined in the ordinary course of businessAmended Contribution Agreement);
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each caserestructuring, of Parent recapitalization or any material Subsidiary of Parentreorganization;
(fe) incur knowingly and intentionally take any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as action that would not reasonably be expected to have an adverse impact on make any representation or delay warranty of Parent hereunder inaccurate in any material respect at, or immediately prior to, the FinancingEffective Time; or
(gf) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Charter Communications, Inc. /Mo/), Merger Agreement (Time Warner Cable Inc.)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IXTime, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 with the prior written consent of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or ), as required expressly permitted by applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, or as set forth in Section 6.1 of the Parent Disclosure LetterSchedules, as consented to Parent and its Subsidiaries shall conduct their business in writing a manner not involving the entry by Parent or its Subsidiaries into lines of businesses that are materially different from the lines of businesses of Parent and its Subsidiaries on the date hereof. Without limiting the generality of the foregoing, except with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed) ), as expressly permitted by this Agreement or as required by applicable Lawset forth in Section 6.1 of the Parent Disclosure Schedules, from the date hereof until the Effective Time, Parent shall not, nor shall it Parent permit any of its Subsidiaries to:
(a) amend its adopt or propose any change in the certificate of incorporation, bylaws incorporation or other similar organizational documents by-laws of Parent (other than amendments to any certificate of designations adopted in connection with the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated herebyEquity Investment);
(b) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent;
(c) except as contemplated by the Equity Investment, (i) other than (x) dividends and other distributions by a direct split, combine, subdivide or indirect Subsidiary reclassify Parent’s outstanding shares of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent capital stock, or (yii) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution payable in cash, stock or make any other distributions in property with respect of, any of its to Parent’s capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of regular quarterly cash dividends payable by Parent Common Stock upon conversion of shares of Parent Class B Stock) or consistent with past practice (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, including increases in the case of this clause (iiisuch dividends consistent with past practice), for (A) redemptionsand in any case not including any special dividend; provided, repurchases however, that Parent shall not declare, set aside or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, pay any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement dividend except in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of businessSection 7.11;
(d) make acquire (or agree to acquire) any assets, property or securities if, individually or in the aggregate, such acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that acquisitions would reasonably be expected to prevent, materially delay impede, materially interfere with or materially impair delay the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to Merger and the date of this Agreement;Transactions; or
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Anadarko Petroleum Corp), Agreement and Plan of Merger (Occidental Petroleum Corp /De/)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable LawTime, Parent shall, and shall cause each of its Subsidiaries to (i) shall conduct its their business in all material respects in the ordinary course of business consistent with past practices practice and (ii) in a manner not representing a new strategic direction for Parent and its Subsidiaries and shall use its their reasonable best efforts to maintain the Parent Station Licenses preserve intact their business organizations and the rights of it and its Subsidiaries thereunderrelationships with third parties. Without limiting the generality of the foregoing, and except with the prior written consent of the Company or as contemplated by this Agreement or as set forth in the Parent Disclosure Schedule, from the date hereof until the Effective Time:
(a) Parent will not, and will not permit any of its Significant Subsidiaries to, adopt or propose any change in its certificate of incorporation or by-laws, except as contemplated hereby, and except that any Significant Subsidiary may make any changes that would not adversely affect the rights of Parent, the Company or its stockholders under this Agreement, the transactions contemplated by this Agreement, or the rights of holders of Parent Common Stock;
(b) Parent will not, and will not permit any of its Significant Subsidiaries to, adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of Parent or any of its Significant Subsidiaries (other than a merger or consolidation between its wholly-owned Subsidiaries, and immaterial recapitalizations of Significant Subsidiaries);
(c) Parent will not issue, sell, transfer, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class or series of Parent, other than (i) issuances pursuant to the exercise of convertible securities outstanding on the date hereof or issuances pursuant to stock-based awards or options outstanding on the date hereof or that are granted in accordance with clause 6.1(c)(ii), (ii) additional options or stock-based awards to acquire Parent Common Stock granted under the terms of any employee or director stock option or compensation plan or arrangement of Parent as in effect as of the date hereof in the ordinary course consistent with past practice, (iii) issuances of such securities for any other purpose, provided that the aggregate number of shares of Parent Common Stock issued (which shall include, for purposes of this paragraph (c), the number of shares of Parent Common Stock issuable upon the exercise, conversion or exchange of convertible securities, options, warrants or other similar rights) pursuant to this clause 6.1(c)(iii) in any period of any twelve consecutive months following the date of this Agreement until the earlier to occur shall in no event exceed more than 2% of the Effective Time and total number of shares of Parent Common Stock outstanding as of the date close of termination of this Agreement in accordance with Article IXbusiness on September 30, except as expressly contemplated by this Agreement, 2000 as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (4.5 and such consent not to shares and securities shall be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments issued only to the organizational documents extent consistent with Section 7.4, and (iv) transfers or issuances of shares of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect of its wholly owned Subsidiary Subsidiaries;
(d) Parent will not (i) split, combine, subdivide or reclassify its outstanding shares of Parent capital stock or (yii) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution payable in cash, stock or make any other distributions in property with respect of, any of to its capital stock or other equity securitiesthan, subject to Section 7.9, (iia) split, recapitalize, subdivide, combine or reclassify regular quarterly cash dividends payable by Parent in respect of the shares of Parent Common Stock Stock, or regular periodic cash or other required dividends payable by any Subsidiary of Parent, in each case (x) consistent with past practice (including periodic dividend increases consistent with past practice) and (y) that are not special dividends, unless, in either case, required to be paid under an applicable agreement in effect as of the date of this Agreement, or (b) dividends paid by any Subsidiary of Parent Class B Stock to Parent or issue any wholly owned Subsidiary of Parent;
(e) Parent will not, and will not permit any Subsidiary of Parent to, redeem, purchase or authorize otherwise acquire directly or indirectly any of Parent's capital stock, except for repurchases, redemptions or acquisitions (x) required by the issuance terms of capital stock or any securities outstanding on the date hereof, (y) required by or in connection with the respective terms, as of the date hereof, of any other securities in respect of, employee stock option plan or in substitution for, outstanding shares compensation plan or arrangement of Parent Common Stock or any dividend reinvestment plan as in effect as of the date hereof in the ordinary course of operations of such plan consistent with past practice and only to the extent consistent with Section 7.4 or (z) effected in the ordinary course consistent with past practice and only to the extent consistent with Section 7.4;
(f) except for any such change which is not significant or which is required by reason of a concurrent change in GAAP, Parent Class B Stock will not, and will not permit any Subsidiary of Parent to, change any method of accounting or accounting practice (other than the issuance of shares of any change for tax purposes) used by it;
(g) Parent Common Stock upon conversion of shares of Parent Class B Stockwill not (i) make or change any Tax election, (ii) settle any audit or (iii) purchase, redeem or otherwise acquire file any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards thatamended Tax Return, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then reasonably likely to result in effecta Tax liability material to Parent and its Subsidiaries, and (z) the granting of Parent Equity Awards in the ordinary course of businesstaken as a whole;
(dh) Parent will not, and will not permit any of its Subsidiaries to, take any action that would make any acquisition (whether by mergerrepresentation or warranty of Parent hereunder inaccurate in any material respect at, consolidation or acquisition of stock or assets) as of any interest in time prior to, the Effective Time; and
(i) Parent will not, and will not permit any Person or of its Subsidiaries to, take any division or assets thereof that action which would reasonably be expected to prevent, materially delay or materially impair impede the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;.
(ej) adopt Parent will not, and will not permit any of its Subsidiaries to, sell, lease, license, encumber (including by the grant of any option thereon) or publicly propose otherwise dispose of any of its assets or properties which would be material to Parent and its Subsidiaries, taken as a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;whole.
(fk) incur Parent will not, and will not permit any indebtedness for borrowed money or guarantees thereofof its Subsidiaries to, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Texaco Inc), Merger Agreement (Chevron Corp)
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IXTime, except as expressly provided otherwise expressly permitted or contemplated by in this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letterincluding Schedule 5.02 hereto, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Lawreasonably necessary for Parent to fulfill its obligations hereunder, Parent shall, and shall cause each of its Subsidiaries to (i) shall conduct its their business in all material respects in the ordinary course of business consistent with past practices practice and (ii) shall use its reasonable their best efforts to maintain preserve intact their business organizations and relationships with customers, suppliers, creditors and business partners and shall use their reasonable efforts to keep available the services of their present officers and employees. It is understood that nothing in this Agreement will restrict any acquisition or disposition by Parent Station Licenses and or any of its Subsidiaries, in one or more transactions, of any drug store or any drug store or related business (the rights of it and its Subsidiaries thereunder"Permitted Parent Transactions"). Without limiting the generality of the foregoingforegoing but subject to the preceding sentence, from the date of this Agreement hereof until the earlier to occur Effective Time, without the prior written approval of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent which approval shall not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:):
(a) amend Parent will not adopt or propose any change in its certificate of incorporationincorporation or any material change in its bylaws, bylaws except for the creation of a series of preferred stock in connection with the adoption of a shareholder rights plan or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby)increase in its authorized capital stock;
(b) Parent will not, and will not permit any Subsidiary of Parent to, adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of Parent or any of its Subsidiaries (iother than a liquidation or dissolution of any Subsidiary or a merger or consolidation between wholly owned Subsidiaries);
(c) Parent will not, and will not permit any Subsidiary of Parent to, issue, sell, transfer, pledge, dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class or series of Parent or its Subsidiaries, other than (xu) dividends and other distributions issuances of shares of Parent Common Stock in connection with any Permitted Parent Transaction, (v) issuances by a direct or indirect any Subsidiary of the Parent to Parent or any direct or indirect wholly wholly-owned Subsidiary of Parent Parent, (w) preferred stock purchase rights and related preferred stock in connection with the adoption of a shareholder rights plan, (x) issuances pursuant to the exercise of stock-based awards or options, including under the plans described in Section 4.05(a), outstanding on the date hereof or granted as contemplated in clause (z) below, (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance issuances of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common ESOP Preference Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effecthereof, and (z) the granting any grant of options or other stock based awards in respect of Parent Equity Awards in the ordinary course Common Stock to employees or directors of businessParent or any of its Subsidiaries under Parent's employee and director stock option and other stock-based plans;
(d) make Parent will not, and will not permit any acquisition (whether by mergerSubsidiary of Parent to, consolidation declare, set aside or acquisition of pay any dividend or other distribution payable in cash, stock or assetsproperty with respect to its capital stock other than (i) regular quarterly cash dividends on Parent Common Stock, (ii) required cash dividends on Parent ESOP Preference Stock, (iii) dividends paid by any Subsidiary of any interest in any Person Parent to Parent or any division or assets thereof wholly-owned Subsidiary of Parent and (iv) in connection with any other changes in the capital structure of Parent that would reasonably be expected cause an appropriate adjustment pursuant to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this AgreementSection 1.06;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolutionParent will not, in each case, and will not permit any Subsidiary of Parent to, redeem, purchase or otherwise acquire directly or indirectly any material Subsidiary of Parent's capital stock;
(f) incur Parent will not, and will not permit any indebtedness for borrowed money or guarantees thereofSubsidiary of Parent to, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges ; and
(g) Parent will not, and agrees that: (i) nothing contained will not permit any Subsidiary of Parent to take or agree or commit to take any action that would make any representation and warranty of Parent hereunder inaccurate in this Agreement shall give the Companyany respect at, directly or indirectlyas of any time prior to, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable LawEffective Time.
Appears in 2 contracts
Samples: Merger Agreement (CVS Corp), Merger Agreement (CVS Corp)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except (a) Except as otherwise expressly permitted or contemplated by provided in this Agreement, Parent covenants and agrees that the business of Parent and its Subsidiaries shall be conducted only in the ordinary course of business and consistent with past practice and, to the extent consistent therewith, Parent shall use (and Parent shall cause its Subsidiaries to use) reasonable best efforts to preserve its business organization intact and maintain its existing relations with customers, policyholders, insureds, reinsurers, agents, underwriters, brokers and investment customers, suppliers, employees, creditors and business partners.
(b) Without limiting the provisions of Section 6.2(a), except as set forth in Section 6.1 6.2(b) of the Parent Disclosure Letter, Parent covenants and agrees that, except as consented to expressly provided in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) this Agreement or as required by to comply with applicable Law, from and after the date of this Agreement and prior to the Effective Time, Parent shallwill not, and shall cause each will not permit any of its Subsidiaries to (without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed):
(i) conduct amend or propose to amend the memorandum and articles of association of Parent;
(ii) issue, sell, transfer, pledge, dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class of Parent or its business in all material respects Subsidiaries, other than issuances pursuant to this Agreement, the Stock Purchase Agreement and the transactions contemplated hereby and thereby or issuances of Parent Class A Common Shares pursuant to the exercise of Parent Options or Parent Warrants outstanding on the date hereof or granted in the ordinary course of business and consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby)practices;
(biii) redeem, purchase or otherwise acquire, directly or indirectly, any material amount of its capital stock, other than, during the period preceding the Measurement Period, pursuant to a repurchase plan meeting the provisions of Rule 10b-18 under the Exchange Act;
(iiv) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, dividend or make any other distributions distribution payable in each case with respect of, any of to its capital stock stock, except for dividends payable to Parent or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares a wholly-owned Subsidiary of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares by another wholly-owned Subsidiary of Parent Common Stock or Parent Class B Stock (other than dividends with a record date after the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common StockEffective Time;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(fvi) incur take any indebtedness for borrowed money action, or guarantees thereoffail to take any action, other than intercompany indebtedness to cause the Parent Class A Common Shares to cease to be quoted on the Nasdaq Stock Market prior to the Closing Date;
(vii) change any of the accounting principles used by it unless required by GAAP, SAP or as would not Law;
(viii) take any action, or fail to take any action, that could impose a material delay in consummating the transactions contemplated hereby, including the Merger;
(ix) take, or agree to commit to take, or omit to take, any action that could reasonably be expected to have an adverse impact on make any representation or delay warranty of Parent, Buyer or Merger Subsidiary contained herein inaccurate in any respect at, or as of any time prior to, the FinancingEffective Time; or
(gx) agree, resolve or commit enter into a Contract to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectlyauthorize, the right recommend, propose or announce an intention to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent do any of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Lawforegoing.
Appears in 2 contracts
Samples: Merger Agreement (Penn America Group Inc), Merger Agreement (Penn America Group Inc)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable LawTime, Parent shall, and shall cause each of its Subsidiaries to (i) to, conduct its their business in all material respects in the ordinary course of business substantially consistent with past practices practice and (ii) in a manner not representing a new strategic direction for Parent and its Subsidiaries and shall, and shall cause its Subsidiaries to, use its their commercially reasonable best efforts to maintain the Parent Station Licenses preserve intact their business organizations and the rights of it and its Subsidiaries thereunderrelationships with third parties. Without limiting the generality of the foregoing, from except with the date of this Agreement until the earlier to occur prior written consent of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except Company (which consent shall not be unreasonably withheld or delayed) or as expressly contemplated by this Agreement, Agreement or as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by from the Company date hereof until the Effective Time:
(such consent not to be unreasonably withheld, conditioned or delayeda) or as required by applicable Law, Parent shall will not, nor shall it and will not permit any of its Subsidiaries to:
(a) amend , adopt or propose any change in its certificate of incorporation, bylaws incorporation or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby)by-laws;
(b) Parent will not, and will not permit any Subsidiary of Parent to, adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring or recapitalization of Parent or any of its Subsidiaries;
(c) Parent will not, and will not permit any Subsidiary of Parent to, issue, sell, transfer, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class or series of Parent or any of its Subsidiaries or any Parent Voting Debt other than (i) issuances pursuant to the exercise of convertible securities or warrants outstanding on the date hereof or issuances pursuant to stock based awards or options that are outstanding on the date hereof and are reflected in Section 5.1(b)(ii) or are granted after the date hereof in accordance with clause 6.2(c)(ii); (ii) additional options or stock-based awards to acquire shares of Parent Common Stock granted under the terms of any Parent Stock Plan as in effect on the date hereof in the ordinary course consistent with past practice or any individual stock option plan in connection with annual compensation reviews or ordinary course promotions or to new hires (in connection with acquisitions or otherwise) and which options or stock-based awards have an exercise or purchase price at least equal to the fair market value of the Parent Common Stock on the date of grant, provided that the aggregate number of shares of Parent Common Stock issued (which shall include the number of shares of Parent Common Stock issuable upon the exercise, conversion or exchange of convertible securities, options, warrants or other than similar rights) pursuant to this clause 6.2(c)(ii) following the date of this Agreement shall in no event exceed 3.5% of the total number of shares of Parent Common Stock outstanding on the date hereof (xsuch 3.5% to be computed by disregarding any such options to the extent that they expire unexercised); (iii) dividends and other distributions by a direct issuance or indirect transfer of shares of Parent Common Stock or rights to purchase shares of Parent Common Stock pursuant to Parent's 1999 Employee Stock Purchase Plan; (iv) transfers or issuances of shares of any Subsidiary of the Parent to Parent or any direct of its wholly-owned Subsidiaries; (iv) issuance or indirect wholly owned Subsidiary transfer of Parent or (y) regular quarterly cash dividends in respect shares of the Parent Common Stock and (or options or other rights to acquire such shares) representing not more than 19.9% of the number of outstanding shares of Parent Class B Common Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to on the date hereof)hereof in connection with acquisitions; and (v) where required by applicable law, issuances of director qualifying shares in jurisdictions other than the United States;
(d) Parent will not (i) split, combine, subdivide or reclassify its outstanding shares of capital stock or (ii) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock, other than (x) regular quarterly cash dividends on, or make any other distributions payable by Parent in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or at the rate of $0.02 per share, and (y) the three-for-two stock dividend publicly announced by Parent Class B on April 23, 2002 (the "Parent Stock or issue or authorize the issuance of Dividend");
(e) Parent will not, and will not permit any other securities in respect of, or in substitution for, outstanding shares Subsidiary of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchaseto, redeem redeem, purchase or otherwise acquire directly or indirectly any shares of shares of Parent Common Stock or Parent Class B StockParent's capital stock, except, in the case of this clause (iii), except for (Ax) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into up to 1,500,000 shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up pursuant to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation Parent's publicly announced repurchase program as of the Merger); date hereof, and (vy) the issuance of any fractional shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of businessDividend;
(df) make any Parent will not be a party to a merger or consolidation unless (i) the merger involves an acquisition that would be within the exception set forth in clause (whether by merger, consolidation or acquisition of stock or assetsiv) of Section 6.2(c) or (ii) the merger or consolidation would not require the approval of the stockholders of Parent under the DGCL or NYSE rules or (iii) if approval of the stockholders of Parent is so required for such merger or consolidation, the record date for stockholders entitled to vote thereon is after the Effective Time.
(g) except for any interest such change which is not material or which is required by reason of a concurrent change in GAAP, Parent will not, and will not permit any Person Subsidiary of Parent to, change any method of accounting or accounting practice used by it;
(h) Parent will not, and will not permit any division or assets thereof that of its Subsidiaries to, take any action which would reasonably be expected to prevent, materially delay or materially impair impede the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;; and
(ei) adopt or publicly propose a plan Parent will not, and will not permit any of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolutionits Subsidiaries to, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (HNC Software Inc/De), Merger Agreement (Fair Isaac & Company Inc)
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable LawTime, Parent shall, and shall cause each of its Subsidiaries to (i) except as contemplated by this Agreement, as set forth in the Parent Disclosure Schedule or as required by Applicable Law, or unless the Company shall otherwise consent in writing, conduct its business in all material respects in the ordinary course of business consistent with past practices practice and, to the extent consistent with and (ii) not in violation of any other provisions of this Section 7.01, use its reasonable best efforts to (i) preserve intact its business organizations and relationships with Third Parties, (ii) maintain in effect all of its foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations which, if abandoned, would reasonably be expected to have a Material Adverse Effect on Parent, (iii) keep available the Parent Station Licenses services of its present officers and employees and (iv) subject to the rights right of contract parties to exercise applicable rights, maintain relationships with its customers, lenders, suppliers and others having material business relationships with it and its Subsidiaries thereunderin a manner which would not reasonably be expected to have a Material Adverse Effect on Parent. Without limiting the generality of the foregoing, from the date of this Agreement hereof until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IXTime, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of Agreement or to the Parent Disclosure Letter, as consented to extent the Company shall otherwise consent in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law), Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, except for dividends paid by a direct or indirect wholly-owned Subsidiary of Parent to Parent or to any of Parent’s other direct or indirect wholly-owned Subsidiaries;
(b) amend its Parent’s certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent whether by merger, consolidation or otherwise) in a manner that would not or would not reasonably be expected to prevent, materially delay or materially impair adversely affect in any material respect the consummation rights of the Merger or the transactions contemplated hereby);
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary holders of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) change Parent’s methods of accounting, except as required by concurrent changes in GAAP or in Regulation S-X of the 1934 Act, as agreed to by its independent public accountants;
(d) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stockcommon stock, and (x) the issuance $0.01 par value, of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;Parent; and
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (RiskMetrics Group Inc), Merger Agreement (MSCI Inc.)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IXTime, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 with the prior written consent of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or ), as required expressly permitted by applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, or as set forth in Section 6.1 of the Parent Disclosure LetterSchedules, as consented to Parent and its Subsidiaries shall conduct their business in writing a manner not involving the entry by Parent or its Subsidiaries into lines of businesses that are materially different from the lines of businesses of Parent and its Subsidiaries on the date hereof. Without limiting the generality of the foregoing, except with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed) ), as expressly permitted by this Agreement or as required by applicable Lawset forth in Section 6.1 of the Parent Disclosure Schedules, from the date hereof until the Effective Time, Parent shall not, nor shall it Parent permit any of its Subsidiaries to:
(a) amend its adopt or propose any change in the certificate of incorporation, bylaws incorporation or other similar organizational documents (other than amendments to the organizational documents by-laws of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby)Parent;
(b) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent;
(c) (i) other than (x) dividends and other distributions by a direct split, combine, subdivide or indirect Subsidiary reclassify Parent’s outstanding shares of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent capital stock, or (yii) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution payable in cash, stock or make any other distributions in property with respect of, any of its to Parent’s capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (ux) issuances of up to 24,630,493 shares of regular quarterly cash dividends payable by Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection consistent with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stockpast practice, and (x) the issuance of in any shares of case not including any special dividend; provided, however, that Parent Common Stock upon the exercise of stock options granted by Parent shall not declare, set aside or vesting, payment and/or settlement of pay any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement dividend except in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of businessSection 7.11;
(d) make acquire (or agree to acquire) any assets, property or securities if, individually or in the aggregate, such acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that acquisitions would reasonably be expected to prevent, materially delay impede, materially interfere with or materially impair delay the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to Combination and the date of this Agreement;Transactions; or
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Anadarko Petroleum Corp), Merger Agreement (Chevron Corp)
Conduct of Parent. From During the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IXPre-Closing Period, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 6.01 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), or as required by applicable Law or Order, Parent shall, and shall cause each of its Subsidiaries to conduct its business in the ordinary course consistent with past practice and, to the extent consistent with the foregoing, use commercially reasonable efforts to (i) preserve intact its business organization, goodwill and reputation, (ii) preserve in all material respects its business relationships with its customers, lenders, suppliers, licensors, licensees, distributors and others having business relationships with it and with Governmental Authorities with jurisdiction over Parent’s operations and (iii) keep available its current officers and key employees. In addition, without limiting the generality of the foregoing, during the Pre-Closing Period, except as expressly contemplated by this Agreement, as set forth in Section 6.01 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned Law or delayed) or as required by applicable LawOrder, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate the articles of incorporationamalgamation, bylaws or other similar organizational documents (other than amendments to the organizational documents whether by merger, consolidation or otherwise), in each case, of Parent or any wholly owned Significant Subsidiary of Parent in a manner that would not or would not reasonably be expected to prevent, materially delay or materially impair have a material and adverse impact on the consummation value of the Merger or the transactions contemplated hereby)Parent Common Shares;
(b) (i) other than (x) dividends and other distributions by a direct directly or indirect Subsidiary indirectly split, combine or reclassify any shares of the Parent to capital stock of Parent or any direct of its Subsidiaries or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of Parent or its Subsidiaries, or make any other distributions in respect ofredeem, any of its capital stock repurchase or other equity securitiesotherwise acquire or offer to redeem, (ii) splitrepurchase, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares equity securities of Parent Common Stock or any of its Subsidiaries, except for (i) the declaration, setting aside or payment of any dividends or other distributions by any of its wholly owned Subsidiaries to Parent Class B Stockor any other wholly owned Subsidiary, exceptor in connection with any internal reorganization transactions solely among the wholly owned Subsidiaries of Parent or (ii) acquisitions, in the case or deemed acquisitions, of this clause (iii), for (A) redemptions, repurchases or acquisitions Parent Common Shares in connection with the exercise, vesting or settlement payment of the exercise price of Parent Equity AwardsStock Options with Parent Stock Options or Parent Common Shares (including in connection with “net exercises”), and (B) acquisitions of shares Parent Common Shares in connection with required Tax withholding in connection with the exercise of Parent Class B Stock as a result Options or the vesting of the conversion of shares of Parent Class B Stock into shares or issuance of Parent Common StockShares subject to Parent RSUs or (C) equity securities of Parent’s Subsidiaries by Parent or its Subsidiaries;
(c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares equity securities of Parent or any of its Subsidiaries, or any securities convertible into or exchangeable or exercisable for equity securities of Parent Securitiesor any of its Subsidiaries, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any Parent Common Shares pursuant to Parent Stock Options, Parent RSUs or Parent Warrants, (y) the issuance, delivery or sale of any shares of Parent Common Stock upon the exercise equity securities of stock options granted by Parent’s Subsidiaries to Parent or vesting, payment and/or settlement any of its wholly owned Subsidiaries or (z) as otherwise permitted pursuant to Section 6.01(k) and set forth in the corresponding section of the Parent Disclosure Letter or (ii) amend any term of any other equity security of Parent Equity Awards that, or its Subsidiaries (in each case, whether by merger, consolidation or otherwise);
(d) incur or commit to any capital expenditures, except for (i) those as may be contemplated by Parent’s fiscal 2016 budget and capital expenditure plan made available to Parent prior to the date of this Agreement (whether or not such capital expenditures are made during the 2016 fiscal year) or (Aii) outstanding any capital expenditures (or series of related capital expenditures) of less than $500,000 in the aggregate per fiscal quarter;
(e) acquire from any Third Party (by merger, consolidation, acquisition of substantial equity interests in or substantial assets or otherwise), directly or indirectly, any corporation, partnership, or other business organization or business thereof, other than (i) inventory, supplies and materials in the ordinary course of business of Parent and its Subsidiaries, (ii) pursuant to Contracts in effect on the date of this Agreement Agreement, or (iii) assets, securities, properties, interests or businesses of Parent or any of its wholly owned Subsidiaries;
(f) sell, license, lease or otherwise transfer, exchange, swap, dispose of or abandon, directly or indirectly, any of Parent’s or its Subsidiaries’ material assets, securities, properties, interests, leases or businesses, other than (i) sales of inventory, of products or services, or obsolete equipment, or non-exclusive licensing of Intellectual Property Rights, all in accordance with the applicable terms thereof ordinary course of business, (ii) sales, licenses, leases or transfers that are pursuant to Contracts in effect on the date of this Agreement Agreement, or (Biii) granted following the date hereof sales, licenses, leases or other transfers to Parent or any of its wholly owned Subsidiaries;
(g) make any loans, advances or capital contributions to, or investments in, any other Person, or form or acquire any Subsidiary that is not wholly owned by Parent or any of its wholly owned Subsidiaries, other than (i) in accordance connection with clause (zactions permitted by Section 6.01(d) belowor Section 6.01(e), (yii) if required by an employment agreement with an employee loans, advances or capital contributions to, or investments in, Parent or any of its wholly owned Subsidiaries, (iii) advances of expenses to employees or other service providers of Parent or its Subsidiaries that is then in effectthe ordinary course of business, for amounts individually not exceeding $10,000 and in the aggregate not exceeding $250,000, (ziv) the granting advances to customers of Parent Equity Awards or its Subsidiaries in the ordinary course of business in connection with the sale of Parent’s products and services, or (v) investments made in connection with treasury functions and cash management in the ordinary course of business;
(dh) make redeem, repurchase, prepay (other than prepayments of revolving loans in the ordinary course of business), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any acquisition material respect the terms of any indebtedness for borrowed money or guarantees thereof in a manner that increases the aggregate liability (whether by merger, consolidation or acquisition of stock or assetsincluding any contingent liability) of Parent or any interest Subsidiary thereunder, or issue or sell any debt securities, except for (i) indebtedness or guarantees between or among Parent and any of its wholly owned Subsidiaries (including any guarantees by the Company of any obligations of any of its wholly owned Subsidiaries to Third Parties) and (ii) indebtedness for borrowed money that will be paid prior to the Closing, and which does not subject Parent or any of its Subsidiaries to any prepayment or other penalties, that is incurred in the ordinary course of business and in an amount not to exceed $1,000,000 in aggregate principal amount, and (iii) letters of credit issued and maintained in the ordinary course of business to the extent undrawn;
(i) enter into any agreement or arrangement that limits or otherwise restricts in any Person material respect Parent or any division of its Subsidiaries from engaging or assets thereof competing in any line of business, in any location or with any Person, or would purport to limit, after the Effective Time, the Surviving Corporation or any of its Subsidiaries in any material respect;
(j) enter into any new line of business outside of the existing business of Parent and its Subsidiaries, other than pursuant to any product roadmaps in existence as of the date hereof and natural extensions or changes to such product roadmaps, in each case, which product roadmaps have been disclosed to the Company prior to the date hereof;
(k) grant any equity or equity-based awards (including, Parent Common Shares, Parent Stock Options or Parent RSUs), other than Parent Stock Options and Parent RSUs granted to employees of Parent or any of its Subsidiaries (excluding any such employees holding the position of Senior Vice President or above as of the date of grant) or other service providers of Parent or any of its Subsidiaries in the ordinary course of business, with the aggregate number of Parent Common Shares subject to such equity awards issuable hereunder not to exceed 550,000 Parent Common Shares in the aggregate, or to new hires in the ordinary course of business, and with such terms as are consistent with past practice (including, vesting acceleration upon specified events, provided that would reasonably be expected such awards will not provide for any vesting acceleration to prevent, materially delay or materially impair occur as a result of the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this AgreementTransactions);
(el) change Parent’s methods of financial accounting, except as allowed by concurrent changes in GAAP or in Regulation S-X of the Exchange Act (or any interpretation thereof), any Governmental Authority or applicable Law;
(m) (i) make or change any material election with respect to Taxes, (ii) adopt or change any method of Tax accounting, (iii) amend any material Tax Return, (iv) settle any material claim or assessment in respect of Taxes, (v) agree to an extension or waiver of the limitation period for any material claim or assessment in respect of Taxes, (vi) enter into any material closing agreement, or (vii) surrender any right to claim a material Tax refund, offset or other reduction in Tax liability;
(n) take any actions that would or would be reasonably likely to (i) result in any of the conditions set forth in ARTICLE 8 not being satisfied, (ii) result in new or additional required approvals from any Governmental Authority in connection with the Transactions that would materially delay the consummation of the Transactions or (iii) materially impair the ability of Parent, the Company or Merger Sub to consummate the Transactions in accordance with the terms of this Agreement or materially delay such consummation;
(o) authorize, apply for or cause to be approved the listing of Parent Common Shares on any stock exchange other than the NASDAQ and the TSX;
(p) cancel, terminate, fail to keep in place or reduce the amount of any insurance coverage provided by existing insurance policies without obtaining substantially equivalent (in the aggregate) substitute insurance coverage, other than in the ordinary course of business or if Parent, in its reasonable judgment, determines that such cancellation, termination or failure to keep in place would not result in Parent and its Subsidiaries having inadequate coverage, including after giving effect to any insured self-retention or co-insurance feature;
(q) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Significant Subsidiary of Parent;
(fr) incur acquire any indebtedness for borrowed money fee interest in real property;
(s) enter into any material interest rate swaps, non-U.S. exchange or guarantees thereof, other similar hedging arrangements other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financingfor purposes of offsetting a bona fide exposure (including counterparty risk); or
(gt) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Polycom Inc), Merger Agreement (Mitel Networks Corp)
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IXTime, except as expressly provided otherwise expressly permitted or contemplated by in this Agreement, as set forth in including Section 6.1 5.02 of the Parent Disclosure LetterSchedule or as reasonably necessary for Parent to fulfill its obligations hereunder, as consented Parent and its Subsidiaries shall conduct their business in the ordinary course consistent with past practice and shall use their reasonable best efforts to in writing by preserve intact their business organizations and relationships with customers, suppliers, creditors and business partners and shall use their reasonable efforts to keep available the services of their present officers and employees. Without limiting the generality of the foregoing but subject to the preceding sentence, from the date hereof until the Effective Time, without the prior written approval of Company (such consent which approval shall not to be unreasonably withheld, conditioned ):
(a) Parent will not adopt or delayedpropose any material change in its articles of incorporation or any material change in its bylaws;
(b) or as required by applicable Law, Parent shallwill not, and shall cause each will not permit any of its Subsidiaries to to, (i) conduct adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of Parent or any of its Subsidiaries (other than a liquidation or dissolution of any wholly owned Subsidiary or a merger or consolidation between wholly owned Subsidiaries) or (ii) make any material acquisition of the business of any person (other than a wholly owned Subsidiary);
(c) Parent will not, and will not permit any of its Subsidiaries to, make any investment in or acquisition of any business of any person or any material amount of assets (other than inventory), except for (i) acquisitions not to exceed $100,000,000 in the aggregate for all acquisitions and (ii) without duplication, any capital expenditure permitted by Section 5.02(j);
(d) Parent will not, and will not permit any of its Subsidiaries to, sell, lease, license, close, shut down or otherwise dispose of any assets (other than inventory) in an amount that would be material respects to Parent and its Subsidiaries, taken as a whole, except (i) pursuant to existing contracts or commitments or (ii) sales, leases, licenses, closings, shutdowns or other dispositions of assets in the ordinary course of business consistent with past practices and practice;
(iie) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall will not, nor shall it and will not permit any of its Subsidiaries to:
(a) amend its certificate , issue, sell, transfer, pledge, dispose of incorporationor encumber any additional shares of, bylaws or other similar organizational documents (other than amendments to the organizational documents securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any wholly owned Subsidiary kind to acquire, any shares of capital stock of any class or series of Parent that would not or would not reasonably be expected to preventits Subsidiaries, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (x) dividends and other distributions issuances by a direct or indirect any Subsidiary of the Parent to Parent or any direct other Subsidiary of Parent, (y) issuances pursuant to the exercise of stock-based awards or indirect wholly owned Subsidiary options, including under the plans described in Section 4.05(a), outstanding on the date hereof or granted as contemplated in clause (z) below, and (z) any grant of options or other stock based awards in respect of Parent Common Stock to employees or directors of Parent or (y) regular quarterly cash dividends any of its Subsidiaries that could result in respect the issuance of not more than 125% of the aggregate amount of shares of Parent Common Stock issuable under all grants of options or other stock based awards during the fiscal year ended January 2, 1999;
(f) Parent will not, and the Parent Class B Stock in an amount will not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof)permit any of its Subsidiaries to, declare, set aside or pay any dividends ondividend or other distribution payable in cash, stock or make any other distributions in property with respect of, any of to its capital stock or other equity securitiesthan (i) cash dividends payable by Parent in an aggregate amount not in excess of $0.0504 per share per calendar quarter, and (ii) split, recapitalize, subdivide, combine or reclassify the shares dividends paid by any Subsidiary of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material other Subsidiary of Parent;
(fg) incur Parent will not, and will not permit any indebtedness for borrowed money of its Subsidiaries to, redeem, purchase or guarantees thereof, other than intercompany indebtedness otherwise acquire directly or as would not reasonably be expected to have an adverse impact on or delay the Financing; orindirectly any of Parent's capital stock;
(gh) agreeParent will not, resolve or commit to do and will not permit any of its Subsidiaries to, move the foregoing. The Company acknowledges and agrees that: location, close, shut down or otherwise eliminate Parent's headquarters or distribution centers or effect a general staff reduction at such headquarters or distribution centers;
(i) nothing contained except in this Agreement shall give the Company, directly connection with investments or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this acquisitions permitted by Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.5.02
Appears in 2 contracts
Samples: Merger Agreement (Food Lion Inc), Merger Agreement (Hannaford Brothers Co)
Conduct of Parent. From the date of this Agreement hereof until the earlier Effective Time, Parent and its Subsidiaries shall conduct their business in the ordinary course consistent with past practice and shall use their reasonable best efforts to occur preserve intact their business organizations and relationships with third parties and to keep available the services of their present officers and employees. From the date hereof until the Effective Time, Parent will use reasonable best efforts to not, and to not permit any of its Subsidiaries to, take any action that would make any representation and warranty of Parent hereunder inaccurate in any respect at, or as of any time prior to, the Effective Time. Without limiting the generality of the foregoing, and except as set forth on Schedule 7.01, from the date hereof until the Effective Time Time, Parent shall not and shall not permit its Subsidiaries to:
(a) adopt or propose any change to its certificate of incorporation or bylaws; provided that, subject to Section 2.06, Parent may, at its election, prior to the termination Effective Time, cause Merger Sub II to be converted into a Delaware limited liability company or other business entity that is treated as a pass-through entity for United States federal income tax purposes;
(b) subject to the limitation in Section 7.01(d), acquire stock or assets of this Agreement any other Person, whether by purchase of stock, purchase of assets, merger, consolidation, or otherwise, having a value in any individual transaction in excess of $100 million, individually, or $150 million in the aggregate;
(c) sell, lease, license or otherwise dispose of any material Subsidiary or any material amount of assets, securities or property except (i) pursuant to existing contracts or commitments and (ii) in the ordinary course consistent with past practice;
(d) (x) issue, sell, transfer, pledge or dispose of any shares of capital stock of any class or series of Parent or its Subsidiaries, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire any such shares (other than (i) issuances pursuant to stock options or stock-based awards granted pursuant to a Parent Employee Plan and outstanding on the date hereof or granted pursuant to clause (ii) below, (ii) additional stock options or stock-based awards granted in the ordinary course consistent with past practices pursuant to any Parent Employee Plan as in effect on the date hereof, (iii) issuances by any Subsidiary of Parent to Parent or to any wholly owned Subsidiary of Parent or (iv) issuances upon conversion of, and in accordance with Article IXthe terms in effect as of the date hereof of, the Parent Convertible Debentures or Parent Warrants) or (y) reduce the exercise or conversion price, extend the term or otherwise modify in any material respect the terms of any such securities of Parent or of any Subsidiary of Parent;
(e) (i) declare, pay or set aside for payment any dividends on or make other distributions in respect of any of its capital stock (except as for dividends by a wholly owned subsidiary of Parent to its parent), (ii) split, combine, subdivide or reclassify any of its capital stock, (iii) repurchase, redeem or otherwise expressly permitted acquire any shares of capital stock of Parent or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (iv) amend any material term of any outstanding security of Parent or any of its Subsidiaries;
(f) (i) incur, assume or guarantee any indebtedness for borrowed money other than (A) for working capital borrowings incurred in the ordinary course of business consistent with past practices or (B) to provide the funds necessary to consummate the transactions contemplated by this Agreement, as set forth in Section 6.1 including any required refinancing of existing indebtedness of Parent or the Company, (ii) create any Lien on any material asset of Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall, and shall cause each any of its Subsidiaries other than in the ordinary course of business consistent with past practices, or (ii) make any material loans, advances or capital contributions to, or investments in, any other Person, other than to Parent or any wholly owned Subsidiary of Parent;
(ig) conduct enter into any transaction, commitment, contract or agreement relating to the assets or business of Parent or any of its business Subsidiaries (including the acquisition or disposition of any assets), or to relinquish any contract or other right, in all each case material respects to Parent and its Subsidiaries, taken as a whole, other than transactions, commitments, contracts and agreements in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly those contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(eh) make any change in any method of accounting or accounting principles or practices, except for any such change required by reason of a concurrent change in GAAP or Regulation S-X under the 1934 Act;
(i) make or change any material Tax election, change any annual tax accounting period, adopt or publicly propose a plan change any method of complete tax accounting if the adoption or partial liquidation change of such method would have an adverse effect on the Tax liability of Parent, make any material amendment to Tax Returns or resolutions providing file claims for material Tax refunds, enter into any material closing agreement, settle any income Tax audit or authorizing such a liquidation or a dissolution, in each case, of Parent assessment or any material Subsidiary of Parentother audit or assessment, or surrender any right to claim any material Tax refund, offset or other reduction in Tax liability;
(fj) incur enter into, or amend any indebtedness for borrowed money material term of, any commitment, contract or guarantees thereof, other than intercompany indebtedness or as agreement with any financial and legal advisor with respect to the transactions contemplated hereby;
(k) take any action that would result in any of the conditions to the Mergers not reasonably be expected to have an adverse impact on or delay the Financingbeing satisfied; or
(gl) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Inveresk Research Group Inc), Merger Agreement (Charles River Laboratories International Inc)
Conduct of Parent. (a) From the date of this Agreement until the earlier to occur of the First Effective Time and the termination of this Agreement in accordance with Article IXTime, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 7.01 of the Parent Disclosure LetterLetter or as required by applicable Law, as consented to Order or a Governmental Authority, unless the Company otherwise consents in writing by the Company (such consent not to be unreasonably withheld, conditioned delayed, or delayed) or as required by applicable Lawconditioned), Parent shall, and shall cause each of its Subsidiaries to (i) to, conduct its business in the ordinary course in all material respects respects, and, to the extent consistent with the foregoing, use commercially reasonable efforts, in each case in the ordinary course in all material respects, to (w) preserve substantially intact its business organization, (x) maintain in effect all of its material foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations, (y) preserve generally its existing business relationships with its key customers, distributors, lenders, suppliers and others having significant business relationships with it and (z) preserve generally its existing relationships with Governmental Authorities with jurisdiction over its operations and retain generally its key employees, in each case, consistent with past practices and practice.
(iib) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the First Effective Time and the date of termination of this Agreement in accordance with Article IXTime, except as expressly contemplated by this Agreement, as set forth in Section 6.1 7.01 of the Parent Disclosure LetterLetter or as required by applicable Law, as consented to Order or a Governmental Authority, unless the Company otherwise consents in writing by the Company (such consent not to be unreasonably withheld, conditioned delayed or delayed) or as required by applicable Lawconditioned), Parent shall not, nor shall it permit any of its Subsidiaries to:
(ai) amend its Parent’s certificate of incorporationincorporation or bylaws (whether by merger, bylaws consolidation or other similar organizational documents (other than amendments to otherwise) in a manner that would have a material and adverse impact on the organizational documents of any wholly owned Subsidiary value of Parent that would not Shares or would not reasonably be expected to prevent, materially delay or materially impair the consummation ability of Parent to perform its obligations under this Agreement or to consummate the Mergers; provided, that any amendment to Parent’s certificate of incorporation to increase the authorized number of shares of any class or series of the Merger or capital stock of Parent shall in no way be restricted by the transactions contemplated hereby)foregoing;
(bii) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock or make property or any other distributions combination thereof) in respect of, any of its the capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock with a record date prior to the Closing, except for quarterly dividends payable to holders of capital stock of Parent (and related dividends or Parent Class B Stock or issue or authorize the issuance of any other securities dividend equivalents in respect ofof equity-based awards) in amounts consistent with past practice (including annual adjustments consistent with past practice), or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or declared and paid consistent with prior timing;
(iii) purchaseredeem, redeem repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any shares of shares of Parent Common Stock Securities if such redemption, repurchase or Parent Class B Stock, except, in acquisition would reasonably be expected to materially delay or prevent the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result closing of the conversion of shares of Parent Class B Stock into shares of Parent Common StockMergers;
(civ) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares a number of Parent Common Stock Shares that would violate Section 312.03(c) of the NYSE Listed Company Manual in the event Parent’s shareholders do not approve the issuance of such Parent Shares;
(other than v) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any issuance that assets, securities, properties, or businesses if any such acquisition, either individually or in the aggregate, would reasonably be expected to materially delay or adversely affect in any material respect the consummation satisfaction of the Mergerclosing conditions set forth in Section 9.01(e); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(evi) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary dissolution of Parent;
(fvii) incur take any indebtedness for borrowed money action or guarantees thereof, other than intercompany indebtedness knowingly fail to take any action where such action or as would not failure to act could reasonably be expected to have an adverse impact on or delay prevent the FinancingMergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; or
(gviii) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding Notwithstanding anything to the contrary set forth in the foregoing, Parent and its Subsidiaries shall not be deemed to be in material breach of this AgreementSection 7.01 for purposes of Section 9.03(a) or Section 10.01(d)(i) as a result of an unintentional breach by Parent or its Subsidiaries, no consent where the consequence of such breach was not material to the Company and Parent and, if curable, Parent shall be required with respect have commenced good-faith efforts to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement cure such breach following written notice of such consent would violate any applicable Lawbreach.
Appears in 2 contracts
Samples: Merger Agreement (Abbott Laboratories), Merger Agreement (St Jude Medical Inc)
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time Closing, Parent and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall, and Subsidiaries shall cause each of its Subsidiaries to (i) conduct its their business in all material respects in the ordinary course of business consistent with past practices practice in compliance with all applicable laws and (ii) shall use its their reasonable best efforts to maintain preserve intact their business organizations and relationships with third parties and to keep available the Parent Station Licenses services of their present officers and the rights of it and its Subsidiaries thereunderemployees. Without limiting the generality of the foregoing, from the date of this Agreement hereof until the earlier to occur of the Effective Time Closing and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this AgreementAgreement or the other Transaction Agreements, as may result from the consummation of the Transactions, as set forth in Section 6.1 7.02 of the Parent Disclosure LetterSchedule, or as otherwise consented to in writing by the Company and W (except if such consent would be inconsistent with applicable law), such consent not to be unreasonably withheld, conditioned withheld with respect to the granting of IRUs in fiber and/or conduit by Parent or delayed) or as required by applicable Lawthe Parent Subsidiaries, Parent shall not, nor not and shall it permit any of its cause the Parent Subsidiaries not to:
(a) amend adopt or propose any change in its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby)documents;
(b) (i) other than (x) dividends and other distributions by a direct issue, deliver, sell, pledge or indirect Subsidiary transfer or authorize or propose the issuance, delivery, sale, pledge or transfer of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any shares of its capital stock of any class or any securities convertible into or exercisable for, or any rights, warrants, options or other equity securitiesrights to acquire, (ii) split, recapitalize, subdivide, combine any such shares or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities ownership interest in Parent or enter into any agreement with respect ofto the foregoing, in each case, if such issuance, delivery, sale or in substitution for, outstanding shares of authorization would require Parent Common Stock or Parent Class B Stock (stockholder approval other than the issuance of shares of Parent Common Stock Shares or warrants upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting exercise or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issuestock options, deliver restricted stock units, warrants or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of preferred stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of businesstheir present terms;
(dc) make any acquisition acquire (whether by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or sell, lease or otherwise dispose of a Parent Subsidiary or an amount of assets or securities, in each case, if such acquisition, sale, lease or disposition would require Parent stockholder approval;
(d) merge or consolidate with any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this AgreementPerson;
(e) adopt split, combine or publicly propose a plan reclassify any shares of complete its capital stock, declare, set aside or partial liquidation pay any dividend or resolutions providing for other distribution (whether in cash, stock or authorizing such a liquidation property or a dissolutionany combination thereof) in respect of its capital stock, other than dividends in each case, shares of Parent Series A Preferred Stock on outstanding shares of the Parent Series A Preferred Stock and cash dividends and distributions by a wholly-owned subsidiary of Parent to Parent or to a subsidiary all of the capital stock of which is owned directly or indirectly by Parent, or, other than consistent with its past practice of acquiring Parent Common Shares to meet its obligation to reserve and issue Parent Common Shares under any stock option or compensation plan or arrangement of Parent, redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of its securities or any material Subsidiary securities of Parentthe Parent Subsidiaries;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness in the ordinary course of business consistent with past practice, change any method of accounting, accounting policy or accounting practice, except for any such change required by reason of a concurrent change in GAAP as would not reasonably be expected to have an adverse impact on or delay the Financing; orconcurred with by Parent's independent auditors;
(g) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges ; or
(h) knowingly take or agree or commit to take any action that would make any representation and agrees that: (i) nothing contained warranty of Parent hereunder inaccurate in this Agreement shall give the Companyany material respect at, directly or indirectlyas of any time prior to, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent except for any representations and Merger Sub shall exercise, consistent with the terms and conditions warranties that are made as of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Lawa specified date.
Appears in 2 contracts
Samples: Merger Agreement (Itc Deltacom Inc), Merger Agreement (Itc Deltacom Inc)
Conduct of Parent. From (a) Except with the date prior written consent of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as otherwise required by applicable LawApplicable Law or a Governmental Authority, Parent shall, and shall cause each from the date hereof until the Effective Time or earlier termination of its Subsidiaries to this Agreement: (i) conduct Parent shall use reasonable best efforts to ensure that each of the Parent Entities conducts its business in all material respects and operations in the ordinary course of business consistent with past practices business; and (ii) Parent shall use its reasonable best efforts to maintain ensure that each of the Parent Station Licenses Entities preserves intact its current business organization and maintains its relations and goodwill with all suppliers, customers, strategic partners, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with the rights of it and its Subsidiaries thereunder. respective Parent Entity.
(b) Without limiting the generality of the foregoing, from except with the date prior written consent of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) ), as expressly contemplated by this Agreement, or as required by applicable LawApplicable Law or a Governmental Authority, Parent shall not, nor shall it permit any of its Subsidiaries to:
(ai) (A) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments waive or propose to amend or waive the Parent Organizational Documents in a manner adverse to the organizational documents Company or its unitholders (provided, for greater certainty, that any amendment to the Parent Organizational Documents to create a new class or series of any wholly owned Subsidiary of Parent that preferred shares would not be considered adverse to the Company or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated herebyits Members);
(bii) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends onnon-cash dividend or other distribution, or make any extraordinary cash dividend or other distributions distribution, in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or A Shares;
(iii) purchaseadopt, redeem approve or otherwise acquire implement any shares of shares of Parent Common Stock “poison pill” or similar rights plan or related agreement that does not provide an exception for any Parent Class B StockA Shares to be issued to the Company, exceptSellerCo and Seller MergerCo and any of their respective Affiliates, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions including in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result either of the conversion of shares of Parent Class B Stock into shares of Parent Common StockMergers;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(eiv) adopt or publicly propose a plan or agreement of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a liquidation, dissolution, in each casemerger, consolidation, restructuring, recapitalization or other material reorganization of Parent or any material Subsidiary Atlas Holdings, LLC or make a voluntary assignment for the benefit of Parent;
(f) incur any indebtedness for borrowed money its creditors or guarantees thereof, other than intercompany indebtedness file a voluntary petition of bankruptcy or as would not reasonably be expected to have an adverse impact on or delay the Financinginsolvency; or
(gv) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Brookfield Asset Management Inc.), Merger Agreement (Oaktree Capital Group, LLC)
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable LawTime, Parent shall, and shall cause each of its Subsidiaries to (i) to, conduct its business in all material respects in the ordinary course of business consistent and in material compliance with past practices all material Applicable Laws and (ii) material Governmental Authorizations, and use its reasonable best efforts to maintain (i) preserve intact its business organization and relationships with Third Parties, and (ii) keep available the Parent Station Licenses services of its officers and the rights of it and its Subsidiaries thereunderkey employees. Without limiting the generality of the foregoing, from the date of this Agreement hereof until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IXTime, except (A) as expressly contemplated by this Agreement, as Agreement or set forth in Section 6.1 7.01 of the Parent Disclosure LetterSchedule, or (B) as consented to the Company may approve in writing by the Company (such consent approval not to be unreasonably withheld, conditioned withheld or delayed) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:):
(a) amend Parent shall not adopt or propose any change in its certificate of incorporation, bylaws incorporation or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby)bylaws;
(b) Parent shall not (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, dividend or make other distribution (whether in cash, stock, property or any other distributions combination thereof) in respect of, of any shares of its capital stock or other equity securitiesstock, (ii) make any tender or exchange offer for Parent Stock at a premium to the then-existing market price of such Parent Stock, (iii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock its capital stock, or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(civ) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securitiesits capital stock, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (vA) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vestingin accordance with their present terms, payment and/or settlement (B) issuances pursuant to the exercise of any other Parent Equity Awards that, in each case, are (A) warrants outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) belowhereof, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (zC) the granting (or any subsequent exercise thereof) of options to acquire shares of Parent Equity Awards Stock or restricted shares of Parent Stock in the ordinary course of businessbusiness (which shall include grants pursuant to Parent’s existing stock option plans and long-term incentive plans), and (D) issuances of stock or grants of stock options (or other stock-based compensation) in connection with any merger, acquisition or other business combination, or other material transaction that, in any such case, does not require any approval of Parent’s stockholders, provided that, for the sake of clarity, neither this Section 7.01(b) nor Section 7.01(f) shall preclude Parent or any of its Subsidiaries from entering into any agreement with respect to any transaction referred to in Section 7.01(b)(D) (regardless of whether or not the issuance of stock in connection therewith would require the approval of Parent’s stockholders) as long as the record date for any vote of Parent’s stockholders required in connection therewith occurs after the Effective Time;
(c) Parent shall not adopt any plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization or propose any resolution for its winding-up, striking-off or dissolution or apply to any court for an administration order or the appointment of a receiver, trustee or similar officer or commence any negotiations to enter into any arrangement with or composition for the benefit of creditors (including any moratorium prior to a voluntary arrangement);
(d) make Parent shall not, and shall not permit any acquisition (whether by mergerof its Subsidiaries to, consolidation or acquisition of stock or assets) of enter into any interest in any Person or any division or assets thereof transaction that would reasonably be expected to prevent, materially delay or materially impair the consummation completion of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt Parent shall not, and shall not permit any of its Subsidiaries to, take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Section 9.03(a) or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;Section 9.03(b) not being satisfied; and
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would Parent shall not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Telewest Global Inc), Merger Agreement (NTL Inc)
Conduct of Parent. From the date of this Agreement until the earlier Effective Time, Parent and its Subsidiaries shall, subject to occur the last sentence of this Section 6.1 and except as set forth on the Parent Disclosure Schedules, conduct their business in the ordinary course consistent with past practice and shall use their reasonable best efforts to preserve intact their business organizations and relationships with third parties. Without limiting the generality of the foregoing and subject to the last sentence of this Section 6.1 and except as set forth on the Parent Disclosure Schedules, with the prior written consent of the Company (which shall not be unreasonably withheld) or as contemplated by this Agreement or the Option Agreements, from the date of this Agreement until the Effective Time Time:
(a) Parent will not, and will not permit any of its Subsidiaries to, adopt or propose any change in its certificate of incorporation or by-laws, except as contemplated by Sections 2.1 and 2.2, and except for such changes to increase the number of authorized shares of Parent Common Stock to no more than 2 billion shares and the termination number of authorized shares of Parent Preferred Stock to no more than 40 million shares and to delete the provisions currently contained in such certificate of incorporation setting forth the terms of series of Parent Preferred Stock designated therein;
(b) Parent will not, and will not permit any of its Subsidiaries to, adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent or any of its Subsidiaries (other than transactions between direct and/or indirect wholly owned Subsidiaries of Parent);
(c) Parent will not, and will not permit any Subsidiary of Parent to, issue, sell, transfer, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class or series of Parent or any of its Subsidiaries, other than (i) issuances of Parent Common Stock pursuant to the exercise of employee or director stock options outstanding on the date of this Agreement or that are granted in accordance with clause (ii) below, or (ii) additional options or stock-based awards to acquire Parent Common Stock granted under the terms of any employee or director stock option or compensation plan or arrangement of Parent as in effect as of the of this Agreement in the ordinary course consistent with past practice;
(d) Parent will not (i) split, combine, subdivide or reclassify its outstanding shares of capital stock or (ii) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock other than, subject to Sections 7.4 and 7.9, regular quarterly cash dividends payable by Parent in respect of the shares of Parent Common Stock consistent with past practice;
(e) Parent will not, and will not permit any Subsidiary of Parent to, redeem, purchase or otherwise acquire directly or indirectly any of Parent's capital stock, Parent Convertible Securities or Parent Subsidiary Convertible Securities, except for repurchases, redemptions or acquisitions (x) required by or in connection with the respective terms of any employee stock option plan or compensation plan or arrangement of Parent, or (y) in accordance with Article IX, except any dividend reinvestment plan as otherwise expressly permitted or contemplated by this Agreement, in effect as set forth in Section 6.1 of the date of this Agreement in the ordinary course of the operation of such plan consistent with past practice and, in the case of each of (x) and (y) above, only to the extent consistent with Section 7.4;
(f) Parent Disclosure Letter, as consented will not amend the terms (including the terms relating to in writing by accelerating the Company vesting or lapse of repurchase rights or obligations) of any employee or director stock options or other stock based awards;
(such consent not to be unreasonably withheld, conditioned or delayedg) or as required by applicable Law, Parent shallwill not, and shall cause each will not permit any Subsidiary of Parent to, (i) grant any severance or termination pay to (or amend any such existing arrangement with) any director, officer or employee of Parent or any of its Subsidiaries, (ii) enter into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of Parent or any of its Subsidiaries, (iii) increase any benefits payable under any existing severance or termination pay policies or employment agreements, (iv) increase (or amend the terms of) any compensation, bonus or other benefits payable to directors, officers or employees of Parent or any of its Subsidiaries or (v) permit any director, officer or employee who is not already a party to an agreement or a participant in a plan providing benefits upon or following a "change in control" to become a party to any such agreement or a participant in any such plan, in the case of each of clauses (i) conduct its business in all material respects through (iv), other than in the ordinary course of business consistent with past practices practice but subject to Sections 7.4 and (ii) use its reasonable best efforts to maintain 7.9 and, in the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality case of the foregoingestablishment of any retention and/or pay-to-stay plans or individual severance arrangements that Parent reasonably believes to be appropriate, from the date of this Agreement until the earlier after notice to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company and Parent's good-faith effort to obtain the Company's approval;
(such consent not to be unreasonably withheld, conditioned or delayedh) or as required by applicable Law, Parent shall will not, nor shall it and will not permit any of its Subsidiaries to:
(a) amend its certificate , acquire a material amount of incorporation, bylaws assets or other similar organizational documents (other than amendments to the organizational documents property of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid Person except in the ordinary course (with record and payment dates of business consistent with the record past practice;
(i) Other than as contemplated by Section 7.1, Parent will not, and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, will not permit any of its capital stock Subsidiaries to, sell, lease, license or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance otherwise dispose of any other securities in respect of, material amount of assets or in substitution for, outstanding shares of Parent Common Stock property except pursuant to existing contracts or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, commitments and except in the case ordinary course of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection business consistent with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stockpast practice;
(cj) issueexcept for any such change which is not material or which is required by reason of a concurrent change in GAAP, deliver or sellParent will not, or authorize the issuance, delivery or sale of, and will not permit any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares Subsidiary of Parent Common Stock to, change any method of accounting or accounting practice (other than any issuance change for tax purposes) used by it;
(k) Parent will not, and will not permit any Subsidiary of Parent to, enter into any material joint venture, partnership or other similar arrangement;
(l) Parent will not, and will not permit any of its Subsidiaries to, take any action that would reasonably be expected to delay the consummation make any representation or warranty of the Merger); (v) the issuance Parent hereunder inaccurate in any material respect at, or as of any shares time prior to, the Effective Time;
(m) Parent will not enter into any standstill agreement, or amend or waive any provisions of, or grant any approval under, any standstill agreement; provided that the Board of Directors of Parent Common Stock in connection may grant a waiver of provisions of, or approval under, a standstill agreement with any Person solely to permit such Person to make a Superior Proposal if the Merger, (w) the issuance Board of shares Directors of Parent Common Stock upon conversion Parent Class B Stockdetermines in its good faith judgment, and (x) after receiving the issuance advice of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards outside legal counsel that, in each caselight of the Superior Proposal, are there is a reasonable possibility that the Board of Directors would be in violation of its fiduciary duties under applicable law if it failed to grant such waiver;
(An) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement Parent will not make or (B) granted following the date hereof in accordance with clause (z) belowchange any material Tax election, (y) if required by an employment agreement with an employee of Parent settle any material audit or its Subsidiaries that is then in effectfile any material amended Tax Returns, and (z) the granting of Parent Equity Awards except in the ordinary course of business;, consistent with past practice; and
(do) make Parent will not, and will not permit any acquisition (whether by mergerof its Subsidiaries to, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give Notwithstanding the Companyforegoing but subject to Section 7.4, directly or indirectly, from the right to control or direct Parent’s or Merger Sub’s operations prior to date hereof until the Closing, (ii) prior to the ClosingEffective Time, Parent and Merger Sub shall exerciseits Subsidiaries may (x) make acquisitions of property, consistent with assets or any business for cash, securities (including equity securities) or other consideration, pursuant to a merger, consolidation, reorganization or otherwise, so long as no one acquisition or series of related acquisitions involves the terms payment of consideration having a fair market value in excess of $1 billion and conditions all acquisitions pursuant to this clause (x) do not involve the payment of this Agreementconsideration having a fair market value in excess of $2 billion, complete control in the aggregate, and supervision over its (y) sell, transfer or otherwise dispose of assets or property of Parent and its Subsidiaries’ operations Subsidiaries so long as Parent and its Subsidiaries do not sell, transfer or otherwise dispose of assets and property pursuant to this clause (iiiy) notwithstanding anything to having a fair market value in excess of $1 billion, in the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Lawaggregate.
Appears in 2 contracts
Samples: Merger Agreement (Alliedsignal Inc), Merger Agreement (Honeywell Inc)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) to, conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereundersince December 31, 2015. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, none of Parent shall notand Merger Sub shall, nor shall it Parent permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly wholly-owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof)Parent, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the any shares of Parent Common Stock or Stock, Parent Class B Preferred Stock, Parent Common Stock or issue or authorize the issuance of any other securities in respect of, convertible into or in substitution for, outstanding shares of Parent Common Stock, Parent Preferred Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) , or (iii) purchase, redeem or otherwise acquire or offer to purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock Securities or Parent Class B StockSubsidiary Securities, except, in the case of this clause (iii), for (A) redemptionssuch purchases, repurchases redemptions and other acquisitions solely between Parent and a wholly owned Subsidiary thereof, or acquisitions in connection with the exercise, vesting or settlement between a wholly owned Subsidiary of Parent Equity Awardsand another wholly owned Subsidiary of Parent;
(b) amend its certificate of incorporation, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stockbylaws or other similar organizational documents;
(c) (i) issue, deliver deliver, pledge, sell or sell, otherwise encumber to any Lien (other than a Permitted Lien) or authorize the issuance, delivery delivery, pledge, sale or sale of, encumbrance to any Lien (other than a Permitted Lien) of any shares of any Parent Securities or Parent Subsidiary Securities, other than (u) issuances of up securities of Parent’s Subsidiaries to 24,630,493 shares Parent or to wholly owned Subsidiaries of Parent Common Stock or (other than ii) amend any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares term or rights of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of warrants for Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, Security (in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement whether by merger, consolidation or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of businessotherwise);
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger;
(e) enter into any business outside of the existing business maintained by Parent or any of its Subsidiaries as of the date hereof;
(f) sell, except assign, license, lease, transfer, abandon or otherwise dispose of, or create any Lien on, or otherwise dispose of, any of Parent’s or its Subsidiaries’ material assets, other than Permitted Liens;
(g) make any loans, advances or capital contributions to, or investments in, any Person, other than Parent or its wholly owned Subsidiaries;
(h) enter into any agreement that would be required to be disclosed in Section 4.20 of the Parent Disclosure Letter if in effect on the date hereof or amend in any material respect any agreement required to be disclosed thereon;
(i) incur or guaranty any indebtedness for borrowed money other than the Debt Financing;
(j) other than to the extent required by the terms of any acquisition Parent Plan, (whether by mergeri) grant or increase any severance or termination pay or benefits with respect to any independent contractor, consolidation employee, officer or acquisition director of stock Parent or assetsany of its Subsidiaries, (ii) make or grant any bonus or any incentive compensation, (iii) establish, adopt, enter into, amend or terminate any Parent Plan or establish, adopt, enter into, amend or terminate any other benefit plan, arrangement that was publicly announced prior to would be a Parent Plan if in existence on the date of this Agreement;
, except for routine amendments or renewals to health and welfare plans (eother than severance plans) adopt that would not result in a material increase in benefits or publicly propose a plan in cost to Parent or any of complete its Subsidiaries, (iv) increase the compensation, bonus or partial liquidation other benefits payable or resolutions providing for provided to any independent contractor, employee, officer or authorizing such a liquidation or a dissolution, in each case, director of Parent or any material Subsidiary of Parentits Subsidiaries, (v) grant any equity or equity-based awards or (vi) loan or advance any money or other property to any independent contractor, employee, officer or director of Parent or any of its Subsidiaries, other than routine expense advances in the ordinary course of business consistent with past practice;
(fk) incur take (or refrain from taking) any indebtedness for borrowed money action that would cause the representations in Section 4.11 and Section 4.19 to fail to be true and correct in all material respects on or guarantees thereofprior to the Closing Date, other than intercompany indebtedness including, without limitation any amendment of the Escrow Agreement;
(l) consent to, authorize or approve any Transfer (as such term is defined in the Parent Certificate of Incorporation) of Parent Stock that would not otherwise be prohibited by Section 2(a) of Article VIII of the Parent Certificate of Incorporation;
(m) (i) settle any Proceeding against Parent or any of its Subsidiaries or (ii) otherwise enter into a settlement of any Proceeding against the Parent or any of its Subsidiaries that would reasonably be expected to have an adverse impact on materially limit or delay restrict the Financingoperation of the business of Parent or any of its Subsidiaries (and after the Closing, Parent or any of its Subsidiaries); or
(gn) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Wmih Corp.), Merger Agreement (Nationstar Mortgage Holdings Inc.)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IXTime, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 with the prior written consent of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law), Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated permitted or required by this Agreement, as may be required by applicable law or as set forth in Section 6.1 of the Parent Disclosure LetterSchedules, as consented to Parent and its Subsidiaries shall conduct their business in writing a manner not involving the entry by Parent or its Subsidiaries into lines of businesses that are materially different from the lines of businesses of Parent and its Subsidiaries on the date hereof. Without limiting the generality of the foregoing, except with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed) ), as expressly permitted or required by this Agreement, as may be required by applicable Lawlaw, or as set forth in Section 6.1 of the Parent Disclosure Schedules, from the date hereof until the Effective Time, Parent shall not, nor shall it Parent permit any of its Subsidiaries to:
(a) amend its adopt or propose any change in the certificate of incorporation, bylaws incorporation or other similar organizational documents (other than amendments to the organizational documents by-laws of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby)Parent;
(b) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent;
(c) (i) other than (x) dividends and other distributions by a direct split, combine, subdivide or indirect Subsidiary reclassify Parent’s outstanding shares of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent capital stock, or (yii) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution payable in cash, stock or make any other distributions in property with respect of, any of its to Parent’s capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of regular quarterly cash dividends payable by Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection consistent with the exercise, vesting or settlement of Parent Equity Awardspast practice, and (B) acquisitions of shares of in any case not including any special dividend; provided, however, that Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issueshall not declare, deliver set aside or sell, or authorize the issuance, delivery or sale of, pay any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement dividend except in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of businessSection 7.11;
(d) make acquire (or agree to acquire) any assets, property or securities if, individually or in the aggregate, such acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that acquisitions would reasonably be expected to prevent, materially delay impede, materially interfere with or materially impair delay the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to Merger and the date of this Agreement;Transactions; or
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Noble Energy Inc), Merger Agreement (Noble Energy Inc)
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable LawTime, Parent shall, and shall cause each of its Subsidiaries to (i) shall conduct its their business in all material respects in the ordinary course of business consistent with past practices practice and (ii) shall use its their reasonable best efforts to maintain the Parent Station Licenses preserve intact their business organizations and the rights of it and its Subsidiaries thereunderrelationships with third parties. Without limiting the generality of the foregoing, from except with the date of this Agreement until the earlier to occur prior written consent of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except Company or as expressly contemplated by this Agreement, as set forth in Section 6.1 of from the Parent Disclosure Letter, as consented to in writing by date hereof until the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Effective Time Parent shall not, nor and shall it not permit any of its Subsidiaries to:
(a) amend its Parent's certificate of incorporation, bylaws incorporation or other similar organizational documents by-laws (other than provided that Parent shall be permitted to make such amendments to its by-laws as are not inconsistent with the organizational documents rights and obligations of any wholly owned Subsidiary of Parent that the parties under this Agreement and as would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated herebyby this Agreement);
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary amend any material terms of the Parent to Parent or any direct or indirect wholly owned Subsidiary outstanding securities of Parent or its Subsidiaries;
(yc) regular quarterly cash dividends in respect split, combine, subdivide or reclassify any shares of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), or declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock or make property or any other distributions combination thereof) in respect ofof Parent Stock, any of its capital stock or other equity securitiesexcept for (i) regular quarterly cash dividends not exceeding $0.02 per share, (ii) splitregular dividends on any future series of preferred stock pursuant to the terms of such securities, recapitalize, subdivide, combine or reclassify the shares (iii) dividends paid by a Subsidiary of Parent Common Stock to Parent or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares Subsidiary of Parent Common Stock that is, directly or indirectly, wholly owned by Parent;
(d) take any action that would or would reasonably be expected to impair the ability of the Company, Parent Class B Stock or Merger Subsidiary to consummate the transactions contemplated by this Agreement or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreement;
(e) change (i) its methods of accounting or accounting practices in any material respect except as required by concurrent changes in U.S. GAAP or by law or (ii) its fiscal year;
(f) enter into or acquire any new line of business that (i) is material to Parent and its Subsidiaries taken as a whole and (ii) is not strategically related to the current business or operations of Parent and its Subsidiaries;
(g) incur indebtedness (other than pursuant to the issuance Financing Agreements) outside of shares the ordinary course or for acquisitions unless such incurrence is not reasonably likely (assuming the consummation of the transactions contemplated hereby) to result in the rating accorded Parent's senior debt by Xxxxx'x Investor's Services and Standard & Poor's Rating Services to be non-investment grade;
(h) engage in any (i) merger, consolidation, share exchange, business combination, reorganization, recapitalization or other similar transaction unless the stockholders of Parent Common Stock upon conversion prior to such transaction own, directly or indirectly, a majority of shares the equity interests in the surviving or resulting corporation and Parent has received an opinion from Xxxxxx, Xxxx & Xxxxxxxx LLP, reasonably satisfactory to Company, to the effect that such transaction will not adversely affect its ability to deliver the opinion described in Section 9.03(c), (ii) transaction as a result of which any third party acquires, directly or indirectly, an equity interest for less than the then market value of Parent Class B Stockstock (other than pursuant to any existing employee compensation plan), or representing greater than in the aggregate 15% of the voting securities of Parent or any Subsidiary of Parent unless Parent has received an opinion from Xxxxxx, Xxxx & Xxxxxxxx LLP, reasonably satisfactory to the Company, to the effect that such transaction will not adversely affect its ability to deliver the opinion described in Section 9.03(c) or (iii) purchasesale, redeem lease, mortgage or otherwise acquire disposition of, or creation of any shares Lien upon, any of shares the properties or assets of Parent Common Stock and its Subsidiaries, other than transactions in this ordinary course of business or Parent Class B Stock, except, transactions not exceeding $100 million in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stockaggregate;
(ci) issue, deliver or sell, or authorize the issuance, delivery or sale of, engage in any shares of transaction with any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock Affiliate (other than any issuance that would reasonably be expected to delay the consummation Subsidiary or any Alliance Company), director or officer of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the MergerParent, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, except on an arms' length basis and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(dj) make acquire, directly or indirectly, any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected Shares except pursuant to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(gk) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Conduct of Parent. From Except (w) with the date prior written consent of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned or delayed), (x) as set forth on Section 7.01 of the Parent Disclosure Schedule, (y) for the transactions contemplated by this Agreement, the Separation Agreement and the Ancillary Agreements or as otherwise expressly required or permitted hereby or thereby or (z) as required by applicable Applicable Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to to, (i) conduct its business in all material respects in the ordinary course of business consistent with past practices and (iiI) use its reasonable best efforts to maintain conduct its business in the ordinary course and (II) use its reasonable best efforts to preserve intact the business organizations of Parent Station Licenses and the rights of it and its Subsidiaries thereunderand the relations and goodwill of all material suppliers, material customers, material licensors and Governmental Authorities, in each case with respect to Parent and its Subsidiaries, and to keep available the services of the present officers and key employees of Parent and its Subsidiaries. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier subject to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IXSection 8.09, except as expressly contemplated by this Agreement, as set forth in Section 6.1 (w) with the prior written consent of the Parent Disclosure Letter, as consented to in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned or delayeddelayed with respect to the matters set forth in clause (d) through (l) and, insofar as related thereto, clause (m) below), (x) as set forth on Section 7.01 of the Parent Disclosure Schedule, (y) for the transactions contemplated by this Agreement, the Separation Agreement and the Ancillary Agreements or as otherwise expressly required or permitted hereby or thereby or (z) as required by applicable Applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to documents, except for the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby)Charter Amendment;
(b) (i) other than split, combine or reclassify any shares of its capital stock, (xii) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock or make property or any other distributions combination thereof) in respect ofof its capital stock, except for (A) dividends by any of its capital stock or other equity securities, wholly-owned Subsidiaries and (iiB) split, recapitalize, subdivide, combine or reclassify regular quarterly cash dividends by Parent with customary record and payment dates on the shares of Parent Common Stock or Parent Class B Stock or issue or authorize not in excess of $0.12 per share for the issuance of any other securities in respect ofquarter ended June 30, or in substitution for2018 and $0.14 per quarter thereafter, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchaseredeem, redeem repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any shares of shares of Parent Common Stock Securities or any Parent Class B StockSubsidiary Securities, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions other than in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the cashless exercise of stock options granted by Parent or vesting, payment and/or settlement of and any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of businessequity incentives;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Westinghouse Air Brake Technologies Corp)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as Except for matters set forth in Section 6.1 5.2 of the Parent Purchaser Disclosure Letter, as otherwise expressly contemplated by or specifically provided in this Agreement, as consented to in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned withheld or delayed) or as required by applicable Law, from the date hereof until the earlier of the Effective Time and the time this Agreement is terminated in accordance with its terms, Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain (a) conduct its business in the Parent Station Licenses and the rights of it ordinary course consistent with past practice, (b) preserve intact in all material respects its business organization, and its Subsidiaries thereunderexisting relationships with Persons having material business relationships therewith, and (c) comply with all applicable Law in all material respects. Without limiting the generality of the foregoing, from and except for matters set forth in Section 5.2 of the date of Purchaser Disclosure Letter or as expressly contemplated or specifically provided in this Agreement until (including the earlier to occur Plan of Arrangement), without the prior written consent of the Effective Time and Company (which consent shall not be unreasonably withheld or delayed), Parent shall not:
(a) amend or otherwise change its articles or code of regulations in a manner that would prevent, materially delay or materially impede the date ability of termination of this Agreement in accordance with Article IX, except as expressly Parent to consummate the transactions contemplated by this Agreement, as set forth in Section 6.1 ;
(b) adopt a plan of the Parent Disclosure Letter, as consented to in writing by the Company complete or partial liquidation or dissolution of Parent;
(such consent not to be unreasonably withheld, conditioned or delayedc) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
, acquire (a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation joint venture, partnership, consolidation, dissolution, liquidation, tender offer, exchange offer, recapitalization, reorganization, share exchange, business combination or acquisition of stock or assetssimilar transaction) of any interest in any Person or any division business or assets thereof that which would reasonably be expected to prevent, materially delay or materially impair the consummation ability of Parent or Purchaser to consummate the transactions contemplated by this Agreement, including the Arrangement;
(d) permit any of its Subsidiaries to incur, assume, guarantee or otherwise become liable for any Indebtedness for borrowed money or any guarantee of such Indebtedness except any such incurrence, assumption, guarantee or other liability which would not be reasonably expected to prevent, materially delay or materially impair the ability of Parent or Purchaser to consummate the transactions contemplated by this Agreement, including the Arrangement;
(e) take any action that would result in the need for Parent shareholder approval of the Merger, except for any acquisition (whether transactions contemplated by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(ef) adopt take any action that is intended to, or publicly propose a plan of complete would reasonably be expected to, individually or partial liquidation in the aggregate, prevent, materially delay or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, materially impede the ability of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected Purchaser to have an adverse impact on or delay consummate the Financingtransactions contemplated by this Agreement; or
(g) agreeannounce an intention, resolve enter into any formal or commit informal agreement or otherwise make a commitment, to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IXTime, except as expressly provided otherwise expressly permitted or contemplated by in this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letterincluding Schedule 5.02 hereto, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Lawreasonably necessary for Parent to fulfill its obligations hereunder, Parent shall, and shall cause each of its Subsidiaries to (i) shall conduct its their business in all material respects in the ordinary course of business consistent with past practices practice and (ii) shall use its reasonable their best efforts to maintain preserve intact their business organizations and relationships with customers, suppliers, creditors and business partners and shall use their reasonable efforts to keep available the services of their present officers and employees. It is understood that nothing in this Agreement will restrict any acquisition or disposition by Parent Station Licenses and or any of its Subsidiaries, in one or more transactions, of any drug store or any drug store or related business (the rights of it and its Subsidiaries thereunder"PERMITTED PARENT TRANSACTIONS"). Without limiting the generality of the foregoingforegoing but subject to the preceding sentence, from the date of this Agreement hereof until the earlier to occur Effective Time, without the prior written approval of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent which approval shall not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:):
(a) amend Parent will not adopt or propose any change in its certificate of incorporationincorporation or any material change in its bylaws, bylaws except for the creation of a series of preferred stock in connection with the adoption of a shareholder rights plan or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby)increase in its authorized capital stock;
(b) Parent will not, and will not permit any Subsidiary of Parent to, adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of Parent or any of its Subsidiaries (iother than a liquidation or dissolution of any Subsidiary or a merger or consolidation between wholly owned Subsidiaries);
(c) Parent will not, and will not permit any Subsidiary of Parent to, issue, sell, transfer, pledge, dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class or series of Parent or its Subsidiaries, other than (xu) dividends and other distributions issuances of shares of Parent Common Stock in connection with any Permitted Parent Transaction, (v) issuances by a direct or indirect any Subsidiary of the Parent to Parent or any direct or indirect wholly wholly-owned Subsidiary of Parent Parent, (w) preferred stock purchase rights and related preferred stock in connection with the adoption of a shareholder rights plan, (x) issuances pursuant to the exercise of stock-based awards or options, including under the plans described in Section 4.05(a), outstanding on the date hereof or granted as contemplated in clause (z) below, (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance issuances of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common ESOP Preference Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effecthereof, and (z) the granting any grant of options or other stock based awards in respect of Parent Equity Awards in the ordinary course Common Stock to employees or directors of businessParent or any of its Subsidiaries under Parent's employee and director stock option and other stock-based plans;
(d) make Parent will not, and will not permit any acquisition (whether by mergerSubsidiary of Parent to, consolidation declare, set aside or acquisition of pay any dividend or other distribution payable in cash, stock or assetsproperty with respect to its capital stock other than (i) regular quarterly cash dividends on Parent Common Stock, (ii) required cash dividends on Parent ESOP Preference Stock, (iii) dividends paid by any Subsidiary of any interest in any Person Parent to Parent or any division or assets thereof wholly-owned Subsidiary of Parent and (iv) in connection with any other changes in the capital structure of Parent that would reasonably be expected cause an appropriate adjustment pursuant to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this AgreementSection 1.06;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolutionParent will not, in each case, and will not permit any Subsidiary of Parent to, redeem, purchase or otherwise acquire directly or indirectly any material Subsidiary of Parent's capital stock;
(f) incur Parent will not, and will not permit any indebtedness for borrowed money or guarantees thereofSubsidiary of Parent to, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges ; and(g) Parent will not, and agrees that: (i) nothing contained will not permit any Subsidiary of Parent to take or agree or commit to take any action that would make any representation and warranty of Parent hereunder inaccurate in this Agreement shall give the Companyany respect at, directly or indirectlyas of any time prior to, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable LawEffective Time.
Appears in 1 contract
Samples: Merger Agreement (Arbor Drugs Inc)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement in accordance with Article IXAgreement, except (x) as otherwise expressly permitted or contemplated required by this AgreementApplicable Law, (y) as set forth in Section 6.1 7.01 of the Parent Disclosure LetterSchedule, or (z) as consented to otherwise required or expressly permitted by this Agreement, unless the Company shall otherwise consent in writing by the Company (such e-mail being sufficient) (which consent shall not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law), Parent shallshall not, and shall cause each of its Subsidiaries not to:
(a) adopt or propose any change to the Parent Organizational Documents (whether by merger, consolidation or otherwise) in a manner that would be materially adverse to the Company’s stockholders;
(b) (i) conduct its merge or consolidate with any other Person or (ii) acquire (including by merger, consolidation, acquisition of stock or assets or entry into joint venture) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property (except in all material respects the ordinary course of business), in each case in this clause (b) that, individually or in the aggregate, would, or would reasonably be expected to, prevent, enjoin or delay beyond the End Date the receipt of the Parent Condition Regulatory Approvals;
(c) adopt or propose a plan of complete or partial merger, liquidation, consolidation, recapitalization, restructuring or other reorganization or dissolution with respect to Parent or Merger Sub, or resolutions providing for or authorizing such a merger, liquidation, consolidation, recapitalization, restructuring or other reorganization or dissolution with respect to Parent or Merger Sub;
(d) declare, set aside or pay or make any dividend or make any other distribution (whether in cash, stock, property or any combination thereof) in respect of Parent Common Stock or any shares of any Subsidiary of Parent’s capital stock or other securities, other than (A) in the case of Parent, (x) regular cash dividends in the ordinary course of business consistent with past practices practice (including with respect to record and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayedpayment dates) or as required by applicable Law(y) subject to Section 2.06, Parent shall not, nor shall it permit any of its Subsidiaries to:
stock dividends or (a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (xB) dividends and other or distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(ge) agree, resolve resolve, authorize, commit or commit propose to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Morgan Stanley)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement Except (x) as provided in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, any Parent Material Contract, or any Partnership Material Contract in effect as set forth in Section 6.1 of the Parent Disclosure LetterExecution Date, (y) as required by applicable Law, or (z) as consented to in writing by the Company Partnership (such consent shall not to be unreasonably withheld, conditioned delayed or delayed) or as required by applicable Lawconditioned), during the period from the Execution Date to the Effective Time, the Parent shall, and shall cause each of its Subsidiaries to (i) Parent Group Entity to, conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunderpractice. Without Additionally, without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement except (x) as provided in accordance with Article IX, except as expressly contemplated by this Agreement, any Parent Material Contract, or any Partnership Material Contract in effect as set forth in Section 6.1 of the Parent Disclosure LetterExecution Date, (y) as required by applicable Law, or (z) as consented to in writing by the Company Partnership (such consent shall not to be unreasonably withheld, conditioned delayed or delayed) or as required by applicable Lawconditioned), during the period from the Execution Date to the Effective Time, Parent shall not, nor and shall it not permit any of its Subsidiaries Parent Group Entity to:
(ai) amend its Parent’s certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger formation or the transactions contemplated hereby)Parent Operating Agreement (whether by merger, consolidation, conversion, or otherwise) in any manner;
(bii) (i) declare, authorize, set aside, or pay any distribution payable in cash, Equity Interests, or property in respect of any Parent Common Units, other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (yA) regular quarterly cash dividends distributions in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid Units in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, business and (B) acquisitions distributions with a record date after the Effective Time;
(iii) merge, consolidate, or enter into any other business combination transaction or agreement with any Person;
(iv) solely with respect to Parent, adopt a plan or agreement of shares complete or partial liquidation, dissolution, restructuring, recapitalization, or a plan or agreement of reorganization under any bankruptcy or similar Law or effect any other similar transaction;
(v) split, combine, divide, subdivide, reverse split, reclassify, recapitalize, or effect any other similar transaction with respect to any of Parent’s Equity Interests;
(vi) issue, deliver, or sell any Equity Interests of Parent Class B Stock as a result for cash; provided, however, that this Section 5.1(b)(vi) shall not restrict or limit the ability of Parent to make equity-based grants to its employees, officers, and directors pursuant to its employee benefit plans; and provided, further, that nothing in this Section 5.1(b)(vi) shall be deemed to restrict the vesting, settlement, and/or payment, or the acceleration of the conversion vesting, settlement, and/or payment, of shares of Parent Class B Stock into shares any awards in respect of Parent Common StockUnits or other equity-based awards in accordance with the terms of any existing equity-based, bonus, incentive, performance, or other compensation plan or arrangement or employee benefit plan (including, without limitation, in connection with any equity-based award holder’s termination of service);
(cvii) issuewaive, deliver or sellrelease, assign, settle, or authorize compromise any Proceedings seeking damages or an injunction or other equitable relief where such waivers, releases, assignments, settlements, or compromises would, in the issuanceaggregate, delivery reasonably be expected to have a Parent Material Adverse Effect; or
(viii) (A) agree, in writing or sale ofotherwise, to take any shares of the foregoing actions, or (B) take any Parent Securitiesaction or agree, other than (u) issuances of up in writing or otherwise, to 24,630,493 shares of Parent Common Stock (other than take any issuance action, including proposing or undertaking any merger, consolidation, or acquisition, in each case, that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Mergerprohibit, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Mergerhinder, except for any acquisition (whether by mergerimpede, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve or commit ability of the Parties to do satisfy any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give conditions to, or the Company, directly or indirectlyconsummation of, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable LawTransactions.
Appears in 1 contract
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 7.01 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) Schedule or as required by applicable Applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices practice and (ii) use its commercially reasonable best efforts to maintain preserve intact its business organizations and relationships with Third Parties and to keep available the Parent Station Licenses services of its present officers and the rights of it and its Subsidiaries thereunderemployees. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time foregoing and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this AgreementAgreement or as required by Applicable Law, as set forth in Section 6.1 without the prior written consent of the Parent Disclosure Letter, as consented to in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned delayed or delayed) or as required by applicable Lawconditioned), from the date hereof until the Effective Time Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not whether by merger, consolidation or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated herebyotherwise);
(b) (i) other than split, combine or reclassify any shares of its capital stock, (xii) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock or make property or any other distributions combination thereof) in respect ofof its capital stock, except for dividends by any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) wholly-owned Subsidiaries or (iii) purchaseredeem, redeem repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any shares of shares securities of Parent Common Stock or Parent Class B Stockany of its Subsidiaries, except, except in the case of this clause (iii), for connection with (A) redemptionsthe payment of the exercise price of a stock option, repurchases or acquisitions (B) tax withholding in connection with the exercise, exercise of a stock option or the vesting or settlement of Parent Equity Awards, and a restricted share or restricted share unit or (BC) acquisitions of shares repurchases of Parent Class B Stock as a result pursuant to Parent’s existing stock repurchase plan in accordance with Rule 10b-18 of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock1934 Act;
(c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any securities of Parent Securitiesor any of its Subsidiaries, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of (A) stock options or other equity compensation arrangements in the ordinary course of business consistent with past practices, including annual grants of restricted stock units to Parent’s employees (B) any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of Parent stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, equity compensation arrangements that are (A) outstanding on the date of this Agreement or issued in compliance with the preceding clause (A), in each case in accordance with the applicable terms thereof on the date of this Agreement those options or arrangements and (BC) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent or (ii) amend in any material respect any term of any securities of Parent or any of its Subsidiaries that is then (in effecteach case, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financingotherwise); or
(gd) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time Time, Parent and the termination of this Agreement in accordance with Article IXits Subsidiaries shall, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 7.01 of the Parent Disclosure Letter, as consented Schedule and except to the extent that the Company shall otherwise consent in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned or delayed) ), conduct their business in the ordinary course and in material compliance with all applicable laws and regulations, pay or as required by applicable Lawperform their material obligations when due, Parent shallsubject to good faith disputes over those obligations, and shall cause each of its Subsidiaries use commercially reasonable efforts to (i) conduct its business maintain their properties in all material respects in the ordinary course of business consistent with past practices and good operating condition, (ii) use keep available the services of its reasonable best efforts to maintain the officers and key employees, and (iii) preserve their relationships with customers, suppliers, licensors, licensees and other third parties with which Parent Station Licenses and the rights of it and or its Subsidiaries thereunderhas business dealings. Without limiting the generality of the foregoing, from the date of this Agreement hereof until the earlier to occur Effective Time, without the prior written consent of the Effective Time and the date of termination of this Agreement in accordance with Article IXCompany (which consent shall not be unreasonably withheld, conditioned or delayed), except as set forth in Section 7.01 of the Parent Disclosure Schedule or as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall not, nor not and shall it permit any of cause its Subsidiaries not to:
(a) amend its certificate adopt or propose any change in Parent’s memorandum and articles of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby)association;
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any material changes to MergerSub’s certificate of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stockincorporation;
(c) engage in any repurchase at a premium, recapitalization, restructuring or reorganization with respect to Parent’s share capital, including, but not limited to, by way of any extraordinary dividend on, or other extraordinary distributions with respect to, Parent’s share capital;
(d) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock of any Parent Securitiesclass or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock or any such convertible securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (wA) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock share options granted by Parent or vestingpursuant to Parent’s long-term incentive plans, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee grant of Parent stock based compensation to directors or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards employees in the ordinary course of businessbusiness consistent with past practices, and (C) the issuance of share capital in connection with a merger or other acquisition or business combination that is permissible under Section 7.01(f) or (ii) amend any term of any outstanding equity security of Parent; or
(e) knowingly take any action that would result in a failure to maintain trading of Parent ADSs on NASDAQ or Parent Ordinary Shares on the main market for listed securities of the LSE;
(df) make any acquisition acquire or dispose of (whether by merger, consolidation or acquisition or sale of stock or assets) of any interest in any Person corporation, partnership or other person or division or business unit thereof or any division equity interest therein if such acquisition or assets thereof that disposition (i) would reasonably be expected to prevent, materially create a substantial risk of delay or materially impair in the consummation of the MergerMerger or the other transactions contemplated by this Agreement, except for any (ii) would involve the acquisition or disposition of a “significant subsidiary” (whether by merger, consolidation as such term is defined in Section 1-02 of Regulation S-X) or acquisition of stock or assets(iii) that was publicly announced prior would create a substantial risk to the date termination or expiration of this Agreement;
(e) adopt any waiting period applicable to the Merger under the HSR Act or publicly propose a plan the receipt of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected approval under Foreign Antitrust Laws applicable to have an adverse impact on or delay the FinancingMerger; or
(g) agree, resolve agree or commit make a binding commitment to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Conduct of Parent. From Between the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement Closing Date, unless the Seller shall otherwise agree in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Lawwriting, Parent shall, and shall cause each its Subsidiaries to, cause its business to be conducted only in the ordinary course consistent with past practice, and shall use commercially reasonable efforts to preserve substantially intact the organization of Parent, use commercially reasonable efforts to keep available the services of employees and consultants of Parent and use commercially reasonable efforts to preserve the current relationships of Parent with customers, suppliers and other persons with which Parent has significant business relations; provided, that in no event shall Parent be deemed to breach this Section 5.1(b) in the event of any action taken, or caused to be taken, by ACM or any of its employees or agents on behalf of Parent or its Subsidiaries pursuant to (ithe Management Agreement to the extent not previously approved by the Special Committee. Between the date of this Agreement and the Closing Date, except as set forth on Schedule 5.1(b) conduct its business in all material respects of the Disclosure Schedules, Parent shall not do or propose to do, directly or indirectly, unless such action is contemplated by the terms of this Agreement or the Ancillary Agreements or in the ordinary course of the business consistent with past practices of Parent and its Subsidiaries, any of the following without the prior written consent of the Seller, which consent shall not be unreasonably withheld or delayed:
(i) acquire (by merger or stock or asset purchase or otherwise) any corporation, partnership, other business organization or any material business or division thereof that, at the time such action is taken, to the knowledge of Parent, would be likely to prevent the Closing;
(ii) use its reasonable best efforts to maintain amend the Parent Station Licenses and charter or bylaws of Parent, the rights of it and its Subsidiaries thereunder. Without limiting the generality partnership agreement of the foregoing, from Partnership or the date of this Agreement until the earlier to occur limited liability company agreement of the Effective Time and the date of termination of this Agreement TRS in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent manner that would not prohibit or would not reasonably be expected to preventhinder, materially impede or delay or materially impair in any material respect the consummation of the Merger or the transactions contemplated hereby)hereby or have a material and adverse impact on the value of Parent Common Stock;
(biii) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or distribution payable in cash, stock or make any other distributions property in respect ofof any capital stock, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of than regular quarterly cash dividends on Parent Common Stock or Parent Class B Stock or issue or authorize as described Schedule 5.1(b) of the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (Disclosure Schedules and other than dividends or distributions with a record date after the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common StockClosing Date;
(civ) issue, deliver or selltake any action, or authorize intentionally fail to take any action, that would cause any representation or warranty made by Parent or the issuance, delivery Buyer in this Agreement or sale of, any shares Ancillary Agreement to be untrue or result in a breach of any Parent Securities, other than (ucovenant made by the Buyer in this Agreement or any Ancillary Agreement and in each case such breach or failure to perform would give rise to the failure of a condition in Section 7.2(a) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that or has or would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of have a Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable LawMaterial Adverse Effect.
Appears in 1 contract
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable LawTime, Parent shall, and shall cause each of its Subsidiaries to (i) shall conduct its their business in all material respects in the ordinary course of business consistent with past practices practice and (ii) shall use its their reasonable best efforts to maintain the Parent Station Licenses preserve intact their business organizations and the rights of it and its Subsidiaries thereunderrelationships with third parties. Without limiting the generality of the foregoing, from except with the date of this Agreement until the earlier to occur prior written consent of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except Company or as expressly contemplated by this Agreement, as set forth in Section 6.1 of from the Parent Disclosure Letter, as consented to in writing by date hereof until the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Effective Time Parent shall not, nor and shall it not permit any of its Subsidiaries to:
(a) amend its Parent's certificate of incorporation, bylaws incorporation or other similar organizational documents by-laws (other than PROVIDED that Parent shall be permitted to make such amendments to its by-laws as are not inconsistent with the organizational documents rights and obligations of any wholly owned Subsidiary of Parent that the parties under this Agreement and as would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated herebyby this Agreement);
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary amend any material terms of the Parent to Parent or any direct or indirect wholly owned Subsidiary outstanding securities of Parent or its Subsidiaries;
(yc) regular quarterly cash dividends in respect split, combine, subdivide or reclassify any shares of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), or declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock or make property or any other distributions combination thereof) in respect ofof Parent Stock, any of its capital stock or other equity securitiesexcept for (i) regular quarterly cash dividends not exceeding $0.02 per share, (ii) splitregular dividends on any future series of preferred stock pursuant to the terms of such securities, recapitalize, subdivide, combine or reclassify the shares (iii) dividends paid by a Subsidiary of Parent Common Stock to Parent or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares Subsidiary of Parent Common Stock that is, directly or indirectly, wholly owned by Parent;
(d) take any action that would or would reasonably be expected to impair the ability of the Company, Parent Class B Stock or Merger Subsidiary to consummate the transactions contemplated by this Agreement or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreement;
(e) change (i) its methods of accounting or accounting practices in any material respect except as required by concurrent changes in U.S. GAAP or by law or (ii) its fiscal year;
(f) enter into or acquire any new line of business that (i) is material to Parent and its Subsidiaries taken as a whole and (ii) is not strategically related to the current business or operations of Parent and its Subsidiaries;
(g) incur indebtedness (other than pursuant to the issuance Financing Agreements) outside of shares the ordinary course or for acquisitions unless such incurrence is not reasonably likely (assuming the consummation of the transactions contemplated hereby) to result in the rating accorded Parent's senior debt by Xxxxx'x Investor's Services and Standard & Poor's Rating Services to be non-investment grade;
(h) engage in any (i) merger, consolidation, share exchange, business combination, reorganization, recapitalization or other similar transaction unless the stockholders of Parent Common Stock upon conversion prior to such transaction own, directly or indirectly, a majority of shares the equity interests in the surviving or resulting corporation and Parent has received an opinion from Xxxxxx, Xxxx & Xxxxxxxx LLP, reasonably satisfactory to Company, to the effect that such transaction will not adversely affect its ability to deliver the opinion described in Section 9.03(c), (ii) transaction as a result of which any third party acquires, directly or indirectly, an equity interest for less than the then market value of Parent Class B Stockstock (other than pursuant to any existing employee compensation plan), or representing greater than in the aggregate 15% of the voting securities of Parent or any Subsidiary of Parent unless Parent has received an opinion from Xxxxxx, Xxxx & Xxxxxxxx LLP, reasonably satisfactory to the Company, to the effect that such transaction will not adversely affect its ability to deliver the opinion described in Section 9.03(c) or (iii) purchasesale, redeem lease, mortgage or otherwise acquire disposition of, or creation of any shares Lien upon, any of shares the properties or assets of Parent Common Stock and its Subsidiaries, other than transactions in this ordinary course of business or Parent Class B Stock, except, transactions not exceeding $100 million in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stockaggregate;
(ci) issue, deliver or sell, or authorize the issuance, delivery or sale of, engage in any shares of transaction with any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock Affiliate (other than any issuance that would reasonably be expected to delay the consummation Subsidiary or any Alliance Company), director or officer of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the MergerParent, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, except on an arms' length basis and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(dj) make acquire, directly or indirectly, any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected Shares except pursuant to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(gk) agree, resolve agree or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IXTime, except as otherwise expressly contemplated or permitted or contemplated by in this Agreement, as set forth in Section 6.1 of Agreement and except to the Parent Disclosure Letter, as consented to in writing by extent the Company (such consent shall otherwise give its prior written consent, not to be unreasonably withheld, conditioned withheld or delayed) or as required by applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices practice and (ii) use its reasonable best efforts consistent with past practices to (i) preserve intact its present business organization, (ii) maintain in effect all of its material Permits, (iii) keep available the Parent Station Licenses services of its directors, officers and the rights key employees and (iv) preserve in all material respects its relationships with its Table of it Contents material customers, lenders, suppliers and its Subsidiaries thereunderothers having material business relationships with it. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, Agreement or as set forth in Section 6.1 7.01 of the Parent Disclosure Letter, as consented to in writing by without the Company (such prior written consent of Parent, not to be unreasonably withheld, conditioned withheld or delayed) or as required by applicable Law, during the period from the date hereof until the Effective Time, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate Parent’s articles of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not whether by merger, consolidation or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated herebyotherwise);
(b) (i) other than (x) dividends and other distributions by a direct split, combine or indirect Subsidiary reclassify any shares of the Parent to Parent or any direct or indirect wholly owned Subsidiary capital stock of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of Parent or its Subsidiaries, or make redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any other distributions Parent Securities or any Parent Subsidiary Securities, except for (i) the cashless exercise of Parent Stock Options in respect of, any of its capital stock or other equity securitiesaccordance with the terms thereof, (ii) splitdividends by any of its Subsidiaries on a pro rata basis to the equity owners thereof, recapitalize, subdivide, combine or reclassify (iii) regular quarterly cash dividends with customary record and payment dates on the shares of Parent Common Stock or Parent Class B Stock or issue or authorize not in excess of $0.3125 per share per quarter, (iv) supplemental dividends authorized by the issuance Board of any other securities in respect of, or in substitution for, outstanding shares Directors of Parent Common Stock or Parent Class B Stock prior to the date of this Agreement and (other than the issuance of shares v) purchases of Parent Common Stock upon conversion pursuant to any open market share purchase program authorized by the Board of shares Directors of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common StockParent;
(c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities or Parent Subsidiary Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (vA) the issuance of any shares of Parent Common Stock upon the exercise of Parent Stock Options that are outstanding on the date of this Agreement and issued after the date hereof in connection compliance with the Mergerterms of this Agreement in accordance with the terms of those options on the date of this Agreement, (wB) any Parent Subsidiary Securities to Parent or any other Subsidiary or (C) the issuance of shares of Parent Common Stock upon pursuant to the conversion of Parent Class B Stock, and Preferred Stock in accordance with the terms thereof or (xii) the issuance amend any term of any shares of Parent Common Stock upon the exercise of stock options granted by Security or any Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, Subsidiary Security (in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition otherwise other than as may be necessary or appropriate to address the requirements of stock Section 409A of the Code and any guidance promulgated thereunder, including, but not limited to, any transitional rules or assetsrelief provided thereunder);
(d) of incur any interest in any Person capital expenditures or any division obligations or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Mergerliabilities in respect thereof, except for any acquisition (whether by merger, consolidation or acquisition those incurred in the ordinary course of stock or assets) that was publicly announced prior to the date of this Agreementbusiness consistent with past practices;
(e) adopt acquire (by merger, consolidation, acquisition of stock or publicly propose a plan of complete assets or partial liquidation otherwise), directly or resolutions providing for or authorizing such a liquidation or a dissolutionindirectly, in each case, of Parent or any material Subsidiary business; Table of Parent;Contents
(f) sell, lease, license (as licensor or licensee), assign, encumber or otherwise transfer in one transaction or any series of related transactions, any material assets or material rights, except for sales of inventory or obsolete equipment in the ordinary course of business consistent with past practices;
(g) other than in connection with capital expenditures permitted in accordance with the terms of this Agreement, make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice;
(h) create, incur or assume any indebtedness for borrowed money or guarantees thereofthereof other than (i) short-term borrowings in the ordinary course of business and in amounts and on terms consistent with past practices, or (ii) in connection with the financing of the transactions contemplated by this Agreement;
(i) enter into any (i) any copper hedging transactions or (ii) any other hedging transactions other than in the ordinary course of business consistent with past practice;
(j) (i) enter into any agreement or arrangement that limits or otherwise restricts in any material respect Parent, any of its Subsidiaries or any of their respective Affiliates or any successor thereto or that could, after the Effective Time, limit or restrict in any material respect Parent, any of its Subsidiaries, the Surviving Corporation, the Company or any of their respective Affiliates, from engaging or competing in any line of business, in any location or with any Person or (ii) enter into, amend or modify in any material respect or terminate any Material Parent Contract or otherwise waive, release or assign any material rights, claims or benefits of Parent or any of its Subsidiaries other than in the ordinary course of business consistent with past practice;
(k) (i) with respect to any director, officer or employee of Parent or any of its Subsidiaries whose annual base salary exceeds $200,000, (A) grant or increase any severance or termination pay to (or amend any existing severance pay or termination arrangement, other than intercompany indebtedness as may be necessary or appropriate to address the requirements of Section 409A of the Code and any guidance promulgated thereunder, including, but not limited to, any transitional rules or relief provided thereunder) or (B) enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement, other than as would may be necessary or appropriate to address the requirements of Section 409A of the Code and any guidance promulgated thereunder, including, but not reasonably be expected limited to, any transitional rules or relief provided thereunder), (ii) generally increase benefits payable under any existing severance or termination pay policies, (iii) establish, adopt or amend (except as required by Applicable Law or to have an adverse impact on address the application of Section 409A of the Code) any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock or delay other similar benefit plan or Table of Contents arrangement, (iv) increase compensation, bonus or other benefits payable to any employee of Parent or any of its Subsidiaries, or (v) grant or make any equity-based awards, other than, in the Financingcase of each of clauses (i)-(v), in the ordinary course of business consistent with past practice;
(l) change Parent’s methods of accounting in any material respect, except as required by concurrent changes in GAAP or in Regulation S-X of the 1934 Act, as agreed to by its independent public accountants;
(m) except as required by Applicable Law or any contract or other written agreement entered into prior to the date hereof, materially fund (or set aside any material funds for the purpose of funding) any pension, environmental or other contingent liability;
(n) settle, or offer or propose to settle, (i) any material litigation, investigation, arbitration, proceeding or other claim involving or against Parent or any of its Subsidiaries, (ii) any stockholder litigation or dispute against Parent or any of its officers or directors or (iii) any litigation, arbitration, proceeding or dispute that relates to the transactions contemplated hereby; or
(go) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Phelps Dodge Corp)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement in accordance with Article IXAgreement, except (x) as otherwise expressly permitted or contemplated required by this AgreementApplicable Law, (y) as set forth in Section 6.1 7.01 of the Parent Disclosure LetterSchedule, or (z) as consented to otherwise required or expressly permitted by this Agreement, unless the Company shall otherwise consent in writing by the Company (such e-mail being sufficient) (which consent shall not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law), Parent shallshall not, and shall cause each of its Subsidiaries not to:
(a) adopt or propose any change to the Parent Organizational Documents (whether by merger, consolidation or otherwise) in a manner that would be materially adverse to the Company’s stockholders;
(b) (i) conduct its merge or consolidate with any other Person or (ii) acquire (including by merger, consolidation, acquisition of stock or assets or entry into joint venture) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property (except in all material respects the ordinary course of business), in each case in this clause (b) that, individually or in the aggregate, would, or would reasonably be expected to, prevent, enjoin or delay beyond the End Date the receipt of the Parent Condition Regulatory Approvals;
(c) adopt or propose a plan of complete or partial merger, liquidation, consolidation, recapitalization, restructuring or other reorganization or dissolution with respect to Parent or Merger Sub, or resolutions providing for or authorizing such a merger, liquidation, consolidation, recapitalization, restructuring or other reorganization or dissolution with respect to Parent or Merger Sub;
(d) declare, set aside or pay or make any dividend or make any other distribution (whether in cash, stock, property or any combination thereof) in respect of Parent Common Stock or any shares of any Subsidiary of Parent’s capital stock or other securities, other than (A) in the case of Parent, (x) regular cash dividends in the ordinary course of business consistent with past practices practice (including with respect to record and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayedpayment dates) or as required by applicable Law(y) subject to Section 2.06, Parent shall not, nor shall it permit any of its Subsidiaries to:
stock dividends or (a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (xB) dividends and other or distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(ge) agree, resolve resolve, authorize, commit or commit propose to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement or the Contribution Agreement or the In- vestment Agreement, to effect the Equity Exchange, the Equity Issuance, the Bright House Transactions, or as set forth in Section 6.1 7.01 of the Parent Disclosure LetterSchedule, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) conduct to, con- duct its business in all material respects in the ordinary course of business consistent with past practices practice and use its commercially reasonable efforts to (i) preserve intact its business organization, (ii) use main- tain in effect all of its reasonable best efforts to material foreign, federal, state and local licenses, permits, consents, xxxx- chises, approvals and authorizations, and (iii) maintain the Parent Station Licenses its existing relationships with its material customers, lenders, suppliers and the rights of others having material business relationships with it and its Subsidiaries thereunderwith Governmental Authorities with jurisdiction over Parent’s operations. Without limiting the generality gen- erality of the foregoing, from the date of this Agreement hereof until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IXTime, except as expressly contemplated con- templated by this Agreement, as set forth in Section 6.1 7.01 of the Parent Disclosure LetterSchedule, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Applicable Law, from the date hereof until the Effective Time Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational organiza- tional documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not whether by merger, consolidation or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated herebyotherwise);
(b) (i) other than (x) dividends and other distributions by a direct split, combine or indirect Subsidiary reclassify any shares of the Parent to capital stock of Parent or any direct of its Subsidiaries or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock, rights to acquire stock or property or any combination thereof) in respect of the capital stock of Parent or its Subsidiaries, or make redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any other distributions in respect ofParent Securities or Parent Subsidiary Securities, except for
(i) dividends by any of its capital stock or other equity securitieswholly owned Subsidiaries, (ii) splitredemptions, recapitalizerepurchases or other ac- quisitions or offers to redeem, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect ofrepurchase, or otherwise acquire any Parent Securities in substitution forconnec- tion with the vesting or settlement of equity-based compensation, outstanding shares of Parent Common Stock or Parent Class B Stock and (other than the issuance of shares of Parent Common Stock upon conversion iii) repurchases of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent A Common Stock or Parent Class B Stock, except, in the case ordinary course of this clause business consistent with past practic- es (iii), for (Aincluding as to volume) redemptions, repurchases or acquisitions at then prevailing market prices pursuant to Parent’s share repurchase program as in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stockeffect from time to time;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent SecuritiesSecurities or Parent Subsidiary Securities for gross consideration (without taking into account any underwriting discount or similar discounts or fees) for less than the mar- ket value of such securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement equity-based compensation or (B) granted following pursuant to the date hereof in accordance with clause Stockholders Agreement (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards as defined in the ordinary course of businessAmended Contribution Agreement);
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions res- olutions providing for or authorizing such a liquidation or a dissolution, in each caserestructuring, of Parent recapitali- zation or any material Subsidiary of Parentreorganization;
(fe) incur knowingly and intentionally take any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as action that would not reasonably be expected ex- pected to have an adverse impact on make any representation or delay warranty of Parent hereunder inaccurate in any material respect at, or immediately prior to, the FinancingEffective Time; or
(gf) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Samples: Merger Agreement
Conduct of Parent. From the date of this Agreement hereof until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IXTime, except as otherwise expressly contemplated or permitted or contemplated by in this Agreement, as set forth in Section 6.1 of Agreement and except to the Parent Disclosure Letter, as consented to in writing by extent the Company (such consent shall otherwise give its prior written consent, not to be unreasonably withheld, conditioned withheld or delayed) or as required by applicable Law, Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices practice and (ii) use its reasonable best efforts consistent with past practices to (i) preserve intact its present business organization, (ii) maintain in effect all of its material Permits, (iii) keep available the Parent Station Licenses services of its directors, officers and the rights of it key employees and (iv) preserve in all material respects its Subsidiaries thereunderrelationships with its material customers, lenders, suppliers and others having material business relationships with it. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, Agreement or as set forth in Section 6.1 7.01 of the Parent Disclosure Letter, as consented to in writing by without the Company (such prior written consent of Parent, not to be unreasonably withheld, conditioned withheld or delayed) or as required by applicable Law, during the period from the date hereof until the Effective Time, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate Parent’s articles of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not whether by merger, consolidation or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated herebyotherwise);
(b) (i) other than (x) dividends and other distributions by a direct split, combine or indirect Subsidiary reclassify any shares of the Parent to Parent or any direct or indirect wholly owned Subsidiary capital stock of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of Parent or its Subsidiaries, or make redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any other distributions Parent Securities or any Parent Subsidiary Securities, except for (i) the cashless exercise of Parent Stock Options in respect of, any of its capital stock or other equity securitiesaccordance with the terms thereof, (ii) splitdividends by any of its Subsidiaries on a pro rata basis to the equity owners thereof, recapitalize, subdivide, combine or reclassify (iii) regular quarterly cash dividends with customary record and payment dates on the shares of Parent Common Stock or Parent Class B Stock or issue or authorize not in excess of $0.3125 per share per quarter, (iv) supplemental dividends authorized by the issuance Board of any other securities in respect of, or in substitution for, outstanding shares Directors of Parent Common Stock or Parent Class B Stock prior to the date of this Agreement and (other than the issuance of shares v) purchases of Parent Common Stock upon conversion pursuant to any open market share purchase program authorized by the Board of shares Directors of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common StockParent;
(c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities or Parent Subsidiary Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (vA) the issuance of any shares of Parent Common Stock upon the exercise of Parent Stock Options that are outstanding on the date of this Agreement and issued after the date hereof in connection compliance with the Mergerterms of this Agreement in accordance with the terms of those options on the date of this Agreement, (wB) any Parent Subsidiary Securities to Parent or any other Subsidiary or (C) the issuance of shares of Parent Common Stock upon pursuant to the conversion of Parent Class B Stock, and Preferred Stock in accordance with the terms thereof or (xii) the issuance amend any term of any shares of Parent Common Stock upon the exercise of stock options granted by Security or any Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, Subsidiary Security (in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition otherwise other than as may be necessary or appropriate to address the requirements of stock Section 409A of the Code and any guidance promulgated thereunder, including, but not limited to, any transitional rules or assetsrelief provided thereunder);
(d) of incur any interest in any Person capital expenditures or any division obligations or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Mergerliabilities in respect thereof, except for any acquisition (whether by merger, consolidation or acquisition those incurred in the ordinary course of stock or assets) that was publicly announced prior to the date of this Agreementbusiness consistent with past practices;
(e) adopt acquire (by merger, consolidation, acquisition of stock or publicly propose a plan of complete assets or partial liquidation otherwise), directly or resolutions providing for or authorizing such a liquidation or a dissolutionindirectly, in each case, of Parent or any material Subsidiary of Parentbusiness;
(f) sell, lease, license (as licensor or licensee), assign, encumber or otherwise transfer in one transaction or any series of related transactions, any material assets or material rights, except for sales of inventory or obsolete equipment in the ordinary course of business consistent with past practices;
(g) other than in connection with capital expenditures permitted in accordance with the terms of this Agreement, make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course of business consistent with past practice;
(h) create, incur or assume any indebtedness for borrowed money or guarantees thereofthereof other than (i) short-term borrowings in the ordinary course of business and in amounts and on terms consistent with past practices, or (ii) in connection with the financing of the transactions contemplated by this Agreement;
(i) enter into any (i) any copper hedging transactions or (ii) any other hedging transactions other than in the ordinary course of business consistent with past practice;
(j) (i) enter into any agreement or arrangement that limits or otherwise restricts in any material respect Parent, any of its Subsidiaries or any of their respective Affiliates or any successor thereto or that could, after the Effective Time, limit or restrict in any material respect Parent, any of its Subsidiaries, the Surviving Corporation, the Company or any of their respective Affiliates, from engaging or competing in any line of business, in any location or with any Person or (ii) enter into, amend or modify in any material respect or terminate any Material Parent Contract or otherwise waive, release or assign any material rights, claims or benefits of Parent or any of its Subsidiaries other than in the ordinary course of business consistent with past practice;
(k) (i) with respect to any director, officer or employee of Parent or any of its Subsidiaries whose annual base salary exceeds $200,000, (A) grant or increase any severance or termination pay to (or amend any existing severance pay or termination arrangement, other than intercompany indebtedness as may be necessary or appropriate to address the requirements of Section 409A of the Code and any guidance promulgated thereunder, including, but not limited to, any transitional rules or relief provided thereunder) or (B) enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement, other than as would may be necessary or appropriate to address the requirements of Section 409A of the Code and any guidance promulgated thereunder, including, but not reasonably be expected limited to, any transitional rules or relief provided thereunder), (ii) generally increase benefits payable under any existing severance or termination pay policies, (iii) establish, adopt or amend (except as required by Applicable Law or to have an adverse impact on address the application of Section 409A of the Code) any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock or delay other similar benefit plan or arrangement, (iv) increase compensation, bonus or other benefits payable to any employee of Parent or any of its Subsidiaries, or (v) grant or make any equity-based awards, other than, in the Financingcase of each of clauses (i)-(v), in the ordinary course of business consistent with past practice;
(l) change Parent’s methods of accounting in any material respect, except as required by concurrent changes in GAAP or in Regulation S-X of the 1934 Act, as agreed to by its independent public accountants;
(m) except as required by Applicable Law or any contract or other written agreement entered into prior to the date hereof, materially fund (or set aside any material funds for the purpose of funding) any pension, environmental or other contingent liability;
(n) settle, or offer or propose to settle, (i) any material litigation, investigation, arbitration, proceeding or other claim involving or against Parent or any of its Subsidiaries, (ii) any stockholder litigation or dispute against Parent or any of its officers or directors or (iii) any litigation, arbitration, proceeding or dispute that relates to the transactions contemplated hereby; or
(go) agree, resolve or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Freeport McMoran Copper & Gold Inc)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement in accordance with Article IXAgreement, except (x) as required by Applicable Law, (y) as set forth in Section 7.01 of the Parent Disclosure Schedule, or (z) as otherwise required or expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of unless the Parent Disclosure Letter, as consented to Company shall otherwise consent in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law), Parent shallshall not, and shall cause each of its Subsidiaries not to:
(a) adopt or propose any change to the Parent Organizational Documents (whether by merger, consolidation or otherwise) in a manner that would be materially adverse to the Company’s stockholders;
(b) (i) conduct its merge or consolidate with any other Person or (ii) acquire (including by merger, consolidation, acquisition of stock or assets or entry into joint venture) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property (except in all material respects the ordinary course of business), in each case in this clause (b) that, individually or in the aggregate, would, or would reasonably be expected to, prevent, enjoin or delay beyond the End Date the receipt of the Closing Condition Regulatory Approvals;
(c) adopt or propose a plan of complete or partial merger, liquidation, consolidation, recapitalization, restructuring or other reorganization or dissolution with respect to Parent, Merger Sub 1 or Merger Sub 2, or resolutions providing for or authorizing such a merger, liquidation, consolidation, recapitalization, restructuring or other reorganization or dissolution with respect to Parent, Merger Sub 1 or Merger Sub 2;
(d) declare, set aside or pay or make any dividend or make any other distribution (whether in cash, stock, property or any combination thereof) in respect of Parent Common Stock or any shares of any Subsidiary of Parent’s capital stock or other securities, other than (A) in the case of Parent, (x) regular cash dividends in the ordinary course of business consistent with past practices practice (including with respect to record and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayedpayment dates) or as required by applicable Law(y) subject to Section 2.08, Parent shall notstock dividends, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (xB) dividends and other or distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned a Subsidiary of Parent or (yC) regular quarterly cash dividends in respect or distributions required pursuant to the terms of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside Organizational Documents or pay any dividends on, or make any other distributions in respect of, Contract to which Parent or any of its capital stock Subsidiaries is a party or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or is otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger)bound; (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;or
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve resolve, authorize, commit or commit propose to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Morgan Stanley)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the valid termination of this Agreement in accordance with Article IXAgreement, except (x) as otherwise expressly permitted or contemplated required by this AgreementApplicable Law, (y) as set forth in Section 6.1 7.01 of the Parent Disclosure LetterSchedule, or (z) as consented to otherwise required or expressly permitted by this Agreement, unless the Company shall otherwise consent in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law), Parent shallshall not, and shall cause each of its Subsidiaries not to:
(a) adopt or propose any change to the Parent Organizational Documents (whether by merger, consolidation or otherwise) in a manner that would be materially adverse to the Company’s stockholders;
(b) (i) conduct its merge or consolidate with any other Person or (ii) acquire (including by merger, consolidation, acquisition of stock or assets or entry into joint venture) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property (except in all material respects the ordinary course of business), in each case in this clause (b) that, individually or in the aggregate, would, or would reasonably be expected to, prevent, enjoin or delay beyond the End Date the receipt of the Closing Condition Regulatory Approvals;
(c) adopt or propose a plan of complete or partial merger, liquidation, consolidation, recapitalization, restructuring or other reorganization or dissolution with respect to Parent, Merger Sub 1 or Merger Sub 2, or resolutions providing for or authorizing such a merger, liquidation, consolidation, recapitalization, restructuring or other reorganization or dissolution with respect to Parent, Merger Sub 1 or Merger Sub 2;
(d) declare, set aside or pay or make any dividend or make any other distribution (whether in cash, stock, property or any combination thereof) in respect of Parent Common Stock or any shares of any Subsidiary of Parent’s capital stock or other securities, other than (A) in the case of Parent, (x) regular cash dividends in the ordinary course of business consistent with past practices practice (including with respect to record and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayedpayment dates) or as required by applicable Law(y) subject to Section 2.08, Parent shall notstock dividends, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (xB) dividends and other or distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned a Subsidiary of Parent or (yC) regular quarterly cash dividends in respect or distributions required pursuant to the terms of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside Organizational Documents or pay any dividends on, or make any other distributions in respect of, Contract to which Parent or any of its capital stock Subsidiaries is a party or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or is otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger)bound; (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;or
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(g) agree, resolve resolve, authorize, commit or commit propose to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Eaton Vance Corp)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except (a) Except as otherwise expressly permitted or contemplated by this Agreement, as set forth described in Section 6.1 5.2(a) of the Parent Disclosure Letter, or as consented otherwise expressly required or permitted by this Agreement or any Transaction Document (including as contemplated by the PIPE Investment), Parent covenants and agrees as to itself and Merger Sub that, during the period from the Execution Date until the Closing, unless the Company shall otherwise approve in writing by the Company (such consent approval not to be unreasonably withheld, conditioned withheld or delayed) or and except as required by applicable LawLaws, Parent shall, and shall cause each of its Subsidiaries to (i) conduct its the business of it and Merger Sub shall be conducted in the ordinary course in all material respects consistent with past practice and (ii) Parent and Merger Sub shall have no other activity.
(b) Without limiting the generality of, and in furtherance of, the foregoing, from the Execution Date until the Closing, except (x) as otherwise expressly required by this Agreement or as described in Section 5.2(a) of the Parent Disclosure Letter or (y) as the Company may approve in writing (such approval not to be unreasonably withheld or delayed), Parent will not and will not permit Merger Sub to:
(i) adopt any change in their Organizational Documents, amend the Parent Trust Agreement, make any other agreement related to the Parent Trust Account, or make any distribution of amounts held in the Parent Trust Account;
(ii) 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 dividends paid by any direct or indirect wholly owned Subsidiary to Parent or to any other direct or indirect wholly owned Subsidiary of Parent) or repurchase or redeem any Parent Common Stock, other than in connection with the Parent Share Redemption or PIPE Investment;
(iii) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any shares of capital stock of Parent or Merger Sub (other than the issuance of shares by a wholly owned Subsidiary of Parent to Parent or another wholly owned Subsidiary of Parent), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock, other than in connection with the Parent Share Redemption or PIPE Investment;
(iv) reclassify, recapitalize, exchange, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock, other than in connection with the Parent Share Redemption or PIPE Investment;
(v) enter into, or permit any of the assets owned or used by it to become bound by, any Contract, other than as expressly required in connection with the Transactions;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company);
(vii) make any changes with respect to its accounting policies or procedures, except as required by changes in Law or GAAP;
(viii) file any amended material Tax Return, make any material Tax election or settle or compromise any material income Tax liability;
(ix) take any steps for liquidation, winding-up, receivership, freeze of proceedings, arrangements with creditors or any similar action or proceeding by or in respect of Parent of Merger Sub;
(x) take any actions or omit to take any actions that would, individually or in the aggregate, reasonably be expected to result in any of the conditions set forth in Article VI not being satisfied;
(xi) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person or Persons, as applicable, enter into any “keep well” or other agreements to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing, in each case, except in the ordinary course of business consistent with past practices practice or except a loan from DiamondPeak Sponsor LLC or an affiliate thereof or certain of Parent’s officers and (ii) use its reasonable best efforts directors to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement finance Parent’s transaction costs in accordance connection with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby);
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares of Parent Common Stock in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the Financing; or
(gxii) agree, resolve authorize or commit to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Conduct of Parent. From (a) Except with the date prior written consent of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned withheld or delayed) or as required by applicable Law), Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 7.01 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) Schedule or as required by applicable Applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
(ai) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent in a manner that would not or would not reasonably be expected to preventdisproportionally affect the Company’s shareholders in their capacity as Parent’s stockholders (i.e., materially delay or materially impair the assuming consummation of the Merger or the transactions contemplated hereby) as compared to Parent’s other stockholders;
(ii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Parent (other than the Mergers);
(biii) (iA) other than split, combine or reclassify any shares of its capital stock, (xB) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock or make property or any other distributions combination thereof) in respect ofof its capital stock, except for (1) dividends by any of its capital stock or other equity securities, wholly owned Subsidiaries and (ii2) split, recapitalize, subdivide, combine or reclassify regular quarterly cash dividends by Parent with customary record and payment dates on the shares of Parent Common Stock not in excess of $0.40 per share per quarter (appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stocksimilar events) or (iiiC) purchaseother than in the ordinary course of business, redeem consistent with past practice, redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any shares of shares of Parent Common Stock Securities or any Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common StockSubsidiary Securities;
(civ) (A) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares (1) stock options or other equity compensation arrangements in the ordinary course of Parent Common Stock in connection business consistent with the Mergerpast practices, (w2) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock Parent options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, equity compensation arrangements that are (A) outstanding on the date of this Agreement or issued in compliance with the preceding clause (1), in each case in accordance with the applicable terms thereof on of those options, and (3) shares of Parent Common Stock in connection with the settlement of Convertible Notes in accordance with their terms as of the date of this Agreement hereof, or (B) granted following the date hereof amend in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) material respect any term of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the FinancingSecurity; or
(gv) agree, resolve or commit to do any of the foregoing. The Company acknowledges .
(b) Parent shall not, and agrees that: (i) nothing contained in this Agreement shall give cause its Subsidiaries not to, from the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions date of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent Effective Time, take any action or fail to take any action that is intended to, or would reasonably be expected to, individually or in the requirement aggregate, prevent, materially delay or materially impede the ability of such consent would violate Parent and the Merger Subs to consummate the Mergers or the other transactions contemplated by this Agreement, including any applicable Lawfinancing thereof.
Appears in 1 contract
Samples: Merger Agreement (Fidelity National Financial, Inc.)
Conduct of Parent. From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable LawClosing, Parent shall, and shall cause each of its Subsidiaries Merger Sub to, except as expressly required or permitted by this Agreement or any Transaction Document (including the Subscription Agreements), as required by applicable Law or COVID-19 Measures or as consented to by the Company in writing (i) conduct which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in all material respects in the ordinary course of business and consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunderpractice. Without limiting the generality of the foregoing, from except (w) as described in the date corresponding subsection of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, (x) as consented otherwise expressly required or permitted by this Agreement or any Transaction Document (including as contemplated by the Private Placement), (y) as required by applicable Law or COVID-19 Measures or (z) as the Company shall otherwise consent to in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law), Parent shall will not, nor shall it and will not permit any of its Subsidiaries Merger Sub, to:
(a) amend its certificate of incorporationchange, bylaws modify or amend, or seek any approval from the Parent Stockholders to change, modify or amend, the Parent Trust Agreement (or any other similar organizational documents (other than amendments agreement relating to the Parent Trust Account), the Parent Organizational Documents or the organizational documents of any wholly owned Subsidiary of Merger Sub, other than to effectuate the Parent that would not or would not reasonably be expected to prevent, materially delay or materially impair Restated Charter and the consummation of the Merger or the transactions contemplated hereby)Parent Restated Bylaws;
(b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof)make, declare, set aside or pay any dividends on, or make any other distributions distribution (whether in cash, stock or property) in respect ofof any of its outstanding capital stock or other equity interests; (ii) split, combine, reclassify or otherwise change any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify the shares of Parent Common Stock or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stock) interests; or (iii) purchase, redeem or otherwise acquire any shares of shares of Parent Common Stock or Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common Stock;
(c) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance redemption of any shares of Parent Common Stock required by the Redemption Offer or as otherwise required by Parent’s Organizational Documents in order to consummate the Transactions, repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock of, or other equity interests in, Parent;
(c) enter into, or permit any of the assets owned or used by it to become bound by, any Contract, other than as expressly required in connection with the Merger, (w) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, are (A) outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or (B) granted following the date hereof in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of businessTransactions;
(d) other than as expressly required by the Sponsor Agreement, enter into, renew, amend or terminate, or waive or release any rights, claims or benefits under, any transaction or Contract with an Affiliate of Parent or Merger Sub (including, for the avoidance of doubt, (x) the Sponsor and (y) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(e) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any Indebtedness for borrowed money or guarantee incurred between Parent and Merger Sub;
(f) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the transactions contemplated by this Agreement and the Transaction Documents;
(g) make any acquisition (whether by mergerloans, consolidation advances, guarantees or acquisition of stock capital contributions to or assets) of any interest investments in any Person (other than the Company or any division direct or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation indirect wholly owned Subsidiary of the MergerCompany);
(h) make any changes with respect to its accounting policies or procedures, except for as required by changes in Law or GAAP;
(i) (i) issue, sell, grant or authorize the issuance, sale or grant of any acquisition (whether by merger, consolidation or acquisition shares of capital stock or assetsother securities of Parent or any of its Subsidiaries or any options, warrants, convertible securities, subscription rights or other similar rights entitling its holder to receive or acquire any shares of capital stock or other securities of Parent or any of its Subsidiaries, other than (A) that was publicly announced prior in connection with the exercise of any Parent Warrants outstanding on the date hereof or (B) the Transactions (including the transactions contemplated by the Subscription Agreements) or (ii) amend, modify or waive any of the terms or rights set forth in any Parent Warrant or the Parent Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein, other than pursuant to the date of Sponsor Agreement or as expressly provided in this Agreement;
(ej) except as contemplated by the Parent Incentive Plan or Parent ESPP, (i) enter into, adopt or amend any Parent Benefit Plan, or enter into any employment contract or collective bargaining agreement or (ii) hire any employee or any other individual to provide services to Parent or its Subsidiaries following Closing;
(k) file any material amended Tax Return, make, revoke or change any material Tax election, adopt or change any material Tax accounting method or period, enter into any agreement with a Governmental Entity with respect to material Taxes, settle or compromise any examination, audit or other action with a Governmental Entity of or relating to any material Taxes or settle or compromise any claim or assessment by a Governmental Entity in respect of material Taxes, or enter into any Tax sharing or similar agreement (excluding any commercial contract not primarily related to Taxes);
(i) fail to maintain its existence or merge or consolidate with, or purchase any assets or equity securities of, any corporation, partnership, limited liability company, association, joint venture or other entity or organization or any division thereof; or (ii) adopt or publicly propose enter into a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a liquidation, dissolution, in each casemerger, consolidation, restructuring, recapitalization or other reorganization of Parent or any material Subsidiary of Parentits Subsidiaries;
(fm) incur make any indebtedness capital expenditures;
(n) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants), make any change in its existing borrowing or lending arrangements for borrowed money or guarantees thereofon behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any other than intercompany indebtedness or Person;
(o) enter into any new line of business outside of the business currently conducted by Parent and its Subsidiaries as would not reasonably be expected to have an adverse impact on or delay of the Financingdate of this Agreement; or
(gp) agree, resolve agree or commit authorize to do any of the foregoing. The Company acknowledges and agrees that: (i) nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.
Appears in 1 contract
Conduct of Parent. From (a) Except with the date prior written consent of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 6.1 of the Parent Disclosure Letter, as consented to in writing by the Company (such which consent shall not to be unreasonably withheld, conditioned withheld or delayed) or as required by applicable Law), Parent shall, and shall cause each of its Subsidiaries to (i) conduct its business in all material respects in the ordinary course of business consistent with past practices and (ii) use its reasonable best efforts to maintain the Parent Station Licenses and the rights of it and its Subsidiaries thereunder. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the date of termination of this Agreement in accordance with Article IX, except as expressly contemplated by this Agreement, as set forth in Section 6.1 Section 7.01 of the Parent Disclosure Letter, as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed) Schedule or as required by applicable Applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
(ai) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of Parent in a manner that would not or would not reasonably be expected to preventdisproportionally affect the Company’s shareholders in their capacity as Parent’s stockholders (i.e., materially delay or materially impair the assuming consummation of the Merger or the transactions contemplated hereby) as compared to Parent’s other stockholders;
(ii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Parent (other than the Mergers);
(biii) (iA) other than split, combine or reclassify any shares of its capital stock, (xB) dividends and other distributions by a direct or indirect Subsidiary of the Parent to Parent or any direct or indirect wholly owned Subsidiary of Parent or (y) regular quarterly cash dividends in respect of the Parent Common Stock and the Parent Class B Stock in an amount not to exceed $0.18 per share paid in the ordinary course (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends ondividend or other distribution (whether in cash, stock or make property or any other distributions combination thereof) in respect ofof its capital stock, except for (1) dividends by any of its capital stock or other equity securities, wholly owned Subsidiaries and (ii2) split, recapitalize, subdivide, combine or reclassify regular quarterly cash dividends by Parent with customary record and payment dates on the shares of Parent Common Stock not in excess of $0.40 per share per quarter (appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or Parent Class B Stock or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of Parent Common Stock or Parent Class B Stock (other than the issuance of shares of Parent Common Stock upon conversion of shares of Parent Class B Stocksimilar events) or (iiiC) purchaseother than in the ordinary course of business, redeem consistent with past practice, redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any shares of shares of Parent Common Stock Securities or any Parent Class B Stock, except, in the case of this clause (iii), for (A) redemptions, repurchases or acquisitions in connection with the exercise, vesting or settlement of Parent Equity Awards, and (B) acquisitions of shares of Parent Class B Stock as a result of the conversion of shares of Parent Class B Stock into shares of Parent Common StockSubsidiary Securities;
(civ) (A) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Parent Securities, other than (u) issuances of up to 24,630,493 shares of Parent Common Stock (other than any issuance that would reasonably be expected to delay the consummation of the Merger); (v) the issuance of any shares (1) stock options or other equity compensation arrangements in the ordinary course of Parent Common Stock in connection business consistent with the Mergerpast practices, (w2) the issuance of shares of Parent Common Stock upon conversion Parent Class B Stock, and (x) the issuance of any shares of Parent Common Stock upon the exercise of stock Parent options granted by Parent or vesting, payment and/or settlement of any other Parent Equity Awards that, in each case, equity compensation arrangements that are (A) outstanding on the date of this Agreement or issued in compliance with the preceding clause (1), in each case in accordance with the applicable terms thereof on of those options, and (3) shares of Parent Common Stock in connection with the settlement of Convertible Notes in accordance with their terms as of the date of this Agreement hereof, or (B) granted following the date hereof amend in accordance with clause (z) below, (y) if required by an employment agreement with an employee of Parent or its Subsidiaries that is then in effect, and (z) the granting of Parent Equity Awards in the ordinary course of business;
(d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) material respect any term of any interest in any Person or any division or assets thereof that would reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger, except for any acquisition (whether by merger, consolidation or acquisition of stock or assets) that was publicly announced prior to the date of this Agreement;
(e) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of Parent or any material Subsidiary of Parent;
(f) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness or as would not reasonably be expected to have an adverse impact on or delay the FinancingSecurity; or
(gv) agree, resolve or commit to do any of the foregoing. The Company acknowledges .
(b) Parent shall not, and agrees that: (i) nothing contained in this Agreement shall give cause its Subsidiaries not to, from the Company, directly or indirectly, the right to control or direct Parent’s or Merger Sub’s operations prior to the Closing, (ii) prior to the Closing, Parent and Merger Sub shall exercise, consistent with the terms and conditions date of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent Effective Time, take any action or fail to take any action that is intended to, or would reasonably be expected to, individually or in the requirement aggregate, prevent, materially delay or materially impede the ability of such consent would violate Parent and the Merger Subs to consummate the Mergers or the other transactions contemplated by this Agreement, including any applicable Lawfinancing thereof.
Appears in 1 contract
Samples: Merger Agreement (Stewart Information Services Corp)
