Conduct of Parent. Except (w) with the prior written consent of the Company (which consent shall not 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 Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business in the ordinary course and (II) use its reasonable best efforts to preserve intact the business organizations of Parent and its Subsidiaries and 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, subject to Section 8.09, except (w) with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed 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 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, except for the Parent Charter Amendment; (b) (i) split, combine or reclassify any shares of its capital stock, (ii) 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 (A) dividends by any of its wholly-owned Subsidiaries and (B) regular quarterly cash dividends by Parent with customary record and payment dates on the shares of Parent Common Stock not in excess of $0.12 per share for the quarter ended June 30, 2018 and $0.14 per quarter thereafter, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Parent Securities or any Parent Subsidiary Securities, other than in connection with the cashless exercise of stock options and any other equity incentives;
Appears in 1 contract
Samples: Merger Agreement (Westinghouse Air Brake Technologies Corp)
Conduct of Parent. Except (w) with From the prior written consent date of this Agreement until the earlier of the Effective Time and the termination of this Agreement, (A) except (x) as prohibited or required by Applicable Law, (y) as set forth in Section 7.01 of the Parent Disclosure Schedule, or (z) as otherwise required or expressly contemplated by this Agreement, unless the Company shall otherwise consent (which consent shall not 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 Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business in the ordinary course of business consistent with past practice and (II) use its commercially reasonable best efforts to preserve intact the its business organizations of Parent organization and its Subsidiaries and the relations and goodwill of all material relationships with customers, members, suppliers, material customersProviders, material licensors licensors, licensees and Governmental Authorities, in each case with respect to Parent other Third Parties and its Subsidiaries, and to keep available the services of the its present officers and key employees employees; provided that (i) no action by Parent or any of Parent its Subsidiaries permitted by an exception to any of Section 7.01(a) through Section 7.01(e) will be a breach of this sentence and (ii) Parent’s or any of its Subsidiaries’ failure to take any action prohibited by any of Section 7.01(a) through Section 7.01(e) will not be a breach of this sentence and (B) Parent shall, and shall cause each of its Subsidiaries to, conduct its business in accordance with the restriction set forth in Section 7.01(B) of the Parent Disclosure Schedule. Without limiting the generality of the foregoing, subject to Section 8.09, except (wx) with as prohibited or required by Applicable Law, (y) as set forth in Section 7.01 of the Parent Disclosure Schedule or (z) as otherwise required or expressly contemplated by this Agreement, without the Company’s prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed with respect to the matters set forth in clause (d) through (l) and, insofar as related thereto, clause (m) belowdelayed), (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 Law, Parent shall not, nor and shall it permit any cause each of its Subsidiaries not to:
(a) amend its certificate of incorporation, bylaws adopt or other similar organizational documents, except for propose any change to the Parent Charter AmendmentOrganizational Documents in a manner that would be materially adverse to the Company’s shareholders (whether by merger, consolidation or otherwise);
(bi) acquire (including by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property, other than (A) acquisitions of any of the foregoing in an amount not to exceed $2,000,000,000 individually or $5,000,000,000 in the aggregate, (B) acquisitions of securities under Parent’s investment portfolio consistent with Parent’s investment policy and (C) transactions (1) solely among Parent and one or more of its wholly owned Subsidiaries or (2) solely among Parent’s wholly owned Subsidiaries, or (ii) adopt a plan of complete or partial liquidation or dissolution with respect to Parent or Merger Sub;
(c) (i) split, combine or reclassify any shares of its capital stockstock (other than transactions (1) solely among Parent and one or more of its wholly owned Subsidiaries or (2) solely among Parent’s wholly owned Subsidiaries), (ii) amend any term or alter any rights of any of its outstanding equity securities, (iii) declare, set aside or pay any dividend or make any other distribution (whether in cash, stock or stock, property or any combination thereof) in respect of any shares of its capital stockstock or other securities, except for other than (A) dividends by any in the case of its wholly-owned Subsidiaries and (B) Parent, regular quarterly cash dividends by Parent in the ordinary course of business, consistent with customary record and payment dates on the shares past practice, in an amount not to exceed $0.50 per share of Parent Common Stock not in excess of $0.12 per share for the quarter ended June 30, 2018 and $0.14 per quarter thereafter(appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or other similar events relating to Parent Common Stock), or (iiiB) dividends or distributions by a Subsidiary of Parent to Parent or a wholly owned Subsidiary of Parent, or (iv) redeem, repurchase repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Parent Securities of its securities or any Parent securities of any Subsidiary Securitiesof Parent, other than in the ordinary course of business, consistent with past practice, including repurchases of shares of Parent Common Stock (A) pursuant to accelerated share repurchase programs or agreements in the ordinary course of business, consistent with past practice, and (B) in connection with the cashless exercise or the vesting and settlement of Parent Equity Awards (including in satisfaction of any amounts required to be deducted or withheld under Applicable Law), in each case in this clause (B) outstanding as of the date of this Agreement in accordance with the present terms of such Parent Equity Awards or granted after the date of this Agreement;
(d) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock 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 (i) the issuance of any shares of Parent Common Stock upon the exercise of stock options and any Parent Equity Awards or other equity incentivesand equity-linked awards that are outstanding on the date of this Agreement or are granted after the date of this Agreement, (ii) with respect to capital stock or securities of any Subsidiary of Parent, in connection with transactions (A) solely among Parent and one or more of its wholly owned Subsidiaries or (B) solely among Parent’s wholly owned Subsidiaries, (iii) the grant of Parent Equity Awards or other equity and equity-linked awards to employees, directors or individual independent contractors of Parent or any of its Subsidiaries pursuant to Parent’s equity compensation plans, or (iv) in connection with the Parent Share Issuance;
(e) sell, lease, license or otherwise dispose of any Subsidiary or any division thereof or of Parent or any assets, securities or property, other than (i) dispositions of any of the foregoing in an amount not to exceed $3,000,000,000 individually or $6,000,000,000 in the aggregate, (ii) dispositions of securities under Parent’s investment portfolio consistent with Parent’s investment policy or (iii) transactions (A) solely among Parent and one or more of its wholly owned Subsidiaries or (B) solely among Parent’s wholly owned Subsidiaries; or
(f) agree, commit or propose to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (CVS HEALTH Corp)
Conduct of Parent. Except (w) with From the prior written consent date of this Agreement until the earlier of the Effective Time and the termination of this Agreement, except (x) as required by Applicable Law, (y) as set forth in Section 7.1 of the Parent Disclosure Schedule or (z) as otherwise required or expressly permitted by this Agreement, unless the Company shall otherwise consent in writing (which consent shall not 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 Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business in the ordinary course of business consistent with past practice and (II) in compliance in all material respects with all Applicable Laws and use its and their commercially reasonable best efforts to (i) preserve intact the its business organizations of Parent organization and its Subsidiaries and the relations and goodwill of all material relationships with customers, suppliers, licensors, licensees, Governmental Authorities with jurisdiction over Parent’s operations and other Third Parties having material customers, material licensors and Governmental Authorities, in each case business relationships with respect to Parent and its Subsidiaries, and to ; (ii) keep available the services of the present directors, officers and key employees of Parent and its Subsidiaries; and (iii) maintain in effect all material Parent Permits; provided that neither Parent nor any of its Subsidiaries shall take any action to comply with the foregoing that would breach any of Sections 7.1(a) through 7.1(s). Without limiting the generality of the foregoing, subject to Section 8.09, except (wA) with as required by Applicable Law, (B) as set forth in Section 7.1 of the Parent Disclosure Schedule or (C) as otherwise required or expressly permitted by this Agreement, without the Company’s prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed with respect to the matters set forth in clause (d) through (l) and, insofar as related thereto, clause (m) belowdelayed), (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 Law, Parent shall not, nor and shall it permit any cause each of its Subsidiaries not to:
(a) amend adopt or propose any change to its certificate of incorporation, bylaws or other similar organizational documentsdocuments (whether by merger, except for consolidation or otherwise) (including the Parent Charter AmendmentOrganizational Documents);
(b) (i) merge or consolidate with any other Person; (ii) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property, other than (A) acquisitions in the ordinary course of business consistent with past practice in an amount not to exceed $10 million individually or $50 million in the aggregate for all such acquisitions; provided that no transaction otherwise permitted under this clause (A) shall be permitted if it, individually or in the aggregate, would, or would reasonably be expected to, prevent, enjoin, alter or materially delay the Transactions, or (B) transactions (1) solely among Parent and one or more of its wholly owned Subsidiaries or (2) solely among Parent’s wholly owned Subsidiaries; or (iii) adopt or publicly propose a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or resolutions providing for or authorizing such a liquidation, dissolution, recapitalization or restructuring;
(c) (i) split, combine or reclassify any shares of its capital stock, stock (other than transactions (A) solely among Parent and one or more of its wholly owned Subsidiaries or (B) solely among Parent’s wholly owned Subsidiaries); (ii) amend any term or alter any rights of any of its outstanding equity securities; (iii) declare, set aside or pay any dividend or make any other distribution (whether in cash, stock or stock, property or any combination thereof) in respect of any shares of its capital stockstock or other securities, except for (A) other than dividends or distributions by any of its wholly-owned Subsidiaries and (B) regular quarterly cash dividends by Parent with customary record and payment dates on the shares a Subsidiary of Parent Common Stock not in excess to Parent or a wholly owned Subsidiary of $0.12 per share for the quarter ended June 30, 2018 and $0.14 per quarter thereafter, Parent; or (iiiiv) redeem, repurchase repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any securities of Parent Securities or any Subsidiary of Parent or any rights, warrants or options to acquire any such shares or other securities, other than (A) repurchases of shares of Parent Common Stock in connection with the exercise of Parent Stock Options or the vesting or settlement of Parent Restricted Stock Awards, Parent RSU Awards or Parent PSU Awards, in each case outstanding as of the date of this Agreement in accordance with the present terms of the Parent Stock Plans and applicable award agreements of such Parent Stock Options, Parent Restricted Stock Awards, Parent RSU Awards and Parent PSU Awards or (B) the completion of Parent’s previously announced redemption of all of its outstanding warrants to purchase shares of Parent Common Stock that were issued under the Warrant Agreement, dated September 10, 2015, by and between Double Eagle Acquisition Corp. (“Double Eagle”) and Continental Stock Transfer & Trust Company, as warrant agent, as part of the units sold in Double Eagle’s initial public offering;
(d) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock or any securities 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 the issuance of any shares of Parent Common Stock upon the exercise of Parent Stock Options, the vesting or settlement of shares of Parent Restricted Stock Awards, Parent RSU Awards or Parent PSU Awards that are outstanding on the date of this Agreement in accordance with the present terms of the Parent Stock Plans and applicable award agreements of such Parent Stock Options, Parent Restricted Stock Awards, Parent RSU Awards and Parent PSU Awards or (ii) enter into any agreement with respect to the voting of any of its capital stock;
(e) authorize, make or incur any capital expenditures or obligations or liabilities in connection therewith, other than (i) as set forth in Section 7.1(e) of the Parent Disclosure Schedule and (ii) any other capital expenditures not to exceed $150,000,000 in the aggregate;
(f) except for the real property noted as listed for sale in Section 5.22 of the Parent Disclosure Schedule, transfer, sell, lease or otherwise dispose of any Subsidiary Securitiesor any division thereof or of Parent or any assets, securities or property, other than (i) transfers, sales, leases or other dispositions in the ordinary course of business consistent with past practice in an amount not to exceed $10 million in the aggregate for all such dispositions; or (ii) transactions (A) solely among Parent and one or more of its wholly owned Subsidiaries or (B) solely among Parent’s wholly owned Subsidiaries;
(g) sell, assign, transfer or otherwise dispose of, license or sublicense (other than pursuant to non-exclusive licenses or sublicenses granted to Third Parties in the ordinary course of business consistent with past practice), abandon, allow to lapse, or otherwise fail to take any action necessary to maintain, enforce or protect, any material Parent Owned IP;
(i) make any material loans, advances or capital contributions to any other Person, other than loans, advances or capital contributions (A) by Parent to one or more of its wholly owned Subsidiaries or (B) by any Subsidiary of Parent to Parent or any wholly owned Subsidiary of Parent, or (ii) incur, assume, guarantee, repay or repurchase any Indebtedness, other than (w) any optional redemption by Wxxxxxxx Scotsman International, Inc. of up to 10% of the aggregate principal amount of its outstanding 6.875% Senior Secured Notes due 2023 in accordance with Section 3.7(e) of the Indenture, dated August 6, 2018, by and between Mxxxx Finance Sub, Inc., as escrow issuer, and Deutsche Bank Trust Company Americas, as trustee and collateral agent, as supplemented from time to time, (x) pursuant to the Financing, (y) the incurrence or repayment of loans (or issuance or terminations of letters of credit or similar instruments) pursuant to the Parent Credit Agreement (A) in the ordinary course of business consistent with past practice and/or (B) in connection with the consummation of acquisitions or investments otherwise permitted hereunder or to fund the redemption contemplated by clause (w) above, but in an amount not to exceed $50,000,000 in aggregate for all such incurrences pursuant to this clause (y)(B) and/or (z) the issuance of debt securities pursuant to a Parent Notes Permitted Refinancing;
(i) other than in connection with the cashless exercise Financing, create or incur any Lien (except for a Permitted Lien) on any material asset (including any Parent Owned IP);
(j) other than in connection with the Financing, (i) enter into any Parent Material Contract (including by amendment of stock options any Contract that is not a Parent Material Contract such that such Contract becomes a Parent Material Contract), other than in the ordinary course of business consistent with past practice; (ii) terminate, renew, extend or amend in any material respect any Parent Material Contract or waive any material right thereunder, other than in the ordinary course of business consistent with past practice; or (iii) enter into, terminate, renew, extend or amend or waive any right under any Related Party Contract (including, for the avoidance of doubt, the Shareholders Agreement and the Holdings Shareholders Agreement);
(k) terminate, suspend, abrogate, amend or modify any material Parent Permit in a manner material and adverse to Parent and its Subsidiaries, taken as a whole;
(l) except as required by (x) Applicable Law or (y) the terms of any Parent Employee Plan as in effect as of the date hereof including the grant of annual equity-based awards in the ordinary course of business consistent with past practice, with the aggregate grant date fair value of such awards not to exceed an aggregate grant date fair value of $9.9 million: (i) grant any change in control, retention, severance or termination pay to (or amend any existing arrangement with) any of the current or former Parent Service Providers; (ii) enter into any employment, offer letter, term sheet, deferred compensation, consulting, bonus, change in control, severance or other similar agreement (or any amendment to any such existing agreement) with any of the current or former Parent Service Providers; (iii) establish, adopt, amend or enter into any Parent Employee Plan or Collective Bargaining Agreement; (iv) grant or amend any equity or equity-based awards to, or discretionarily accelerate the vesting or payment of any such awards held by, any current or former Parent Service Provider; or (v) increase the compensation, bonus or other benefits payable to any current or former Parent Service Providers (other than increases in base compensation of not more than 4% in the aggregate to management or high-level employees and in each case in the ordinary course of business consistent with past practice);
(m) make any material change in any method of accounting or accounting principles or practice, except for any such change required by GAAP or Regulation S-X, as approved by its independent public accountants;
(i) make or change any material Tax election, (ii) change any annual Tax accounting period, (iii) adopt or change any material method of Tax accounting, (iv) enter into any material closing agreement with respect to Taxes or (v) settle or surrender any material Tax claim, audit or assessment;
(o) except as set forth in Section 7.1(o) of the Parent Disclosure Schedule, settle or compromise, or propose to settle or compromise, any claim, action, suit, investigation, or Proceeding, pending or threatened, and involving or against Parent or any of its Subsidiaries, other than those involving only a monetary payment by Parent or any of its Subsidiaries not to exceed $250,000 individually and $2,000,000 in the aggregate; provided that in no event shall Parent or any of its Subsidiaries settle or compromise, or propose to settle or compromise, without the Company’s prior written consent, (i) any class action or collective action claims or (ii) any other claim, action, suit, investigation, regulatory examination or Proceeding (A) that relates to the Transactions, (B) that seeks injunctive or other equitable relief, or (C) that relates to or asserts (1) infringement, misappropriation or other violation by Parent or any of its Subsidiaries of any Person’s Intellectual Property or (2) infringement, misappropriation or other violation by any Person of any Parent Owned IP;
(p) enter into any transaction between Parent or any of its Subsidiaries, on the one hand, and any of Parent’s Affiliates (other equity incentivesthan Parent and its Subsidiaries), on the other hand;
(q) knowingly and intentionally take any action that would reasonably be expected to make any representation or warranty of Parent hereunder inaccurate in any respect at, or immediately prior to, the Effective Time;
(r) write up, write down or write off the book value of any of its assets, other than (i) in the ordinary course of business and consistent with past practice or (ii) as may be consistent with Parent’s financial accounting policies and procedures and GAAP as determined in consultation with Parent’s outside auditor; or
(s) agree, commit or publicly propose to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (WillScot Corp)
Conduct of Parent. Except (w) with From the prior written consent date of this Agreement until the earlier of the Effective Time and the termination of this Agreement, (A) except (x) as prohibited or required by Applicable Law, (y) as set forth in Section 7.01 of the Parent Disclosure Schedule, or (z) as otherwise required or expressly contemplated by this Agreement, unless the Company shall otherwise consent (which consent shall not 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 Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business in the ordinary course of business consistent with past practice and (II) use its commercially reasonable best efforts to preserve intact the its business organizations of Parent organization and its Subsidiaries and the relations and goodwill of all material relationships with customers, members, suppliers, material customersProviders, material licensors licensors, licensees and Governmental Authorities, in each case with respect to Parent other Third Parties and its Subsidiaries, and to keep available the services of the its present officers and key employees employees; provided that (i) no action by Parent or any of Parent its Subsidiaries permitted by an exception to any of Section 7.01(a) through Section 7.01(e) will be a breach of this sentence and (ii) Parent’s or any of its Subsidiaries’ failure to take any action prohibited by any of Section 7.01(a) through Section 7.01(e) will not be a breach of this sentence and (B) Parent shall, and shall cause each of its Subsidiaries to, conduct its business in accordance with the restriction set forth in Section 7.01(B) of the Parent Disclosure Schedule. Without limiting the generality of the foregoing, subject to Section 8.09, except (wx) with as prohibited or required by Applicable Law, (y) as set forth in Section 7.01 of the Parent Disclosure Schedule or (z) as otherwise required or expressly contemplated by this Agreement, without the Company’s prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed with respect to the matters set forth in clause (d) through (l) and, insofar as related thereto, clause (m) belowdelayed), (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 Law, Parent shall not, nor and shall it permit any cause each of its Subsidiaries not to:
(a) amend its certificate of incorporation, bylaws adopt or other similar organizational documents, except for propose any change to the Parent Charter AmendmentOrganizational Documents in a manner that would be materially adverse to the Company’s shareholders (whether by merger, consolidation or otherwise);
(bi) acquire (including by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property, other than (A) acquisitions of any of the foregoing in an amount not to exceed $2,000,000,000 individually or $5,000,000,000 in the aggregate, (B) acquisitions of securities under Parent’s investment portfolio consistent with Parent’s investment policy and (C) transactions (1) solely among Parent and one or more of its wholly owned Subsidiaries or (2) solely among Parent’s wholly owned Subsidiaries, or (ii) adopt a plan of complete or partial liquidation or dissolution with respect to Parent or Merger Sub;
(c) (i) split, combine or reclassify any shares of its capital stockstock (other than transactions (1) solely among Parent and one or more of its wholly owned Subsidiaries or (2) solely among Parent’s wholly owned Subsidiaries), (ii) amend any term or alter any rights of any of its outstanding equity securities, (iii) declare, set aside or pay any dividend or make any other distribution (whether in cash, stock or stock, property or any combination thereof) in respect of any shares of its capital stockstock or other securities, except for other than (A) dividends by any in the case of its wholly-owned Subsidiaries and (B) Parent, regular quarterly cash dividends by Parent in the ordinary course of business, consistent with customary record and payment dates on the shares past practice, in an amount not to exceed $0.50 per share of Parent Common Stock not in excess of $0.12 per share for the quarter ended June 30, 2018 and $0.14 per quarter thereafter(appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or other similar events relating to Parent Common Stock), or (iiiB) dividends or distributions by a Subsidiary of Parent to Parent or a wholly owned Subsidiary of Parent, or (iv) redeem, repurchase repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Parent Securities of its securities or any Parent securities of any Subsidiary Securitiesof Parent, other than in the ordinary course of business, consistent with past practice, including repurchases of shares of Parent Common Stock (A) pursuant to accelerated share repurchase programs or agreements in the ordinary course of business, consistent with past practice, and (B) in connection with the cashless exercise or the vesting and settlement of Parent Equity Awards (including in satisfaction of any amounts required to be deducted or withheld under Applicable Law), in each case in this clause (B) outstanding as of the date of this Agreement in accordance with the present terms of such Parent Equity Awards or granted after the date of this Agreement;
(d) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock 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 (i) the issuance of any shares of Parent Common Stock upon the exercise of stock options and any Parent Equity Awards or other equity incentivesand equity-linked awards that are outstanding on the date of this Agreement or are granted after the date of this Agreement, (ii) with respect to capital stock or securities of any Subsidiary of Parent, in connection with transactions (A) solely among Parent and one or more of its wholly owned Subsidiaries or (B) solely among Parent’s wholly owned Subsidiaries, (iii) the grant of Parent Equity Awards or other equity and equity-linked awards to employees, directors or individual independent contractors of Parent or any of its Subsidiaries pursuant to Parent’s equity compensation plans, or (iv) in connection with the Parent Share Issuance;
(e) sell, lease, license or otherwise dispose of any Subsidiary or any division thereof or of Parent or any assets, securities or property, other than (i) dispositions of any of the foregoing in an amount not to exceed $3,000,000,000 individually or $6,000,000,000 in the aggregate, (ii) dispositions of securities under Parent’s investment portfolio consistent with Parent’s investment policy or (iii) transactions (A) solely among Parent and one or more of its wholly owned Subsidiaries or (B) solely among Parent’s wholly owned Subsidiaries; or
(f) agree, commit or propose to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Aetna Inc /Pa/)
Conduct of Parent. Except (w) with From the prior written consent date of this Agreement until the earlier of the Effective Time and the termination of this Agreement, except (x) as required by Applicable Law, (y) as set forth in Section 7.1 of the Parent Disclosure Schedule or (z) as otherwise required or expressly permitted by this Agreement, unless the Company shall otherwise consent in writing (which consent shall not 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 Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business in the ordinary course of business consistent with past practice and (II) in compliance in all material respects with all Applicable Laws and use its and their commercially reasonable best efforts to (i) preserve intact the its business organizations of Parent organization and its Subsidiaries and the relations and goodwill of all material relationships with customers, suppliers, licensors, licensees, Governmental Authorities with jurisdiction over Parent’s operations and other Third Parties having material customers, material licensors and Governmental Authorities, in each case business relationships with respect to Parent and its Subsidiaries, and to ; (ii) keep available the services of the present directors, officers and key employees of Parent and its Subsidiaries; and (iii) maintain in effect all material Parent Permits; provided that neither Parent nor any of its Subsidiaries shall take any action to comply with the foregoing that would breach any of Sections 7.1(a) through 7.1(s). Without limiting the generality of the foregoing, subject to Section 8.09, except (wA) with as required by Applicable Law, (B) as set forth in Section 7.1 of the Parent Disclosure Schedule or (C) as otherwise required or expressly permitted by this Agreement, without the Company’s prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed with respect to the matters set forth in clause (d) through (l) and, insofar as related thereto, clause (m) belowdelayed), (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 Law, Parent shall not, nor and shall it permit any cause each of its Subsidiaries not to:
(a) amend adopt or propose any change to its certificate of incorporation, bylaws or other similar organizational documentsdocuments (whether by merger, except for consolidation or otherwise) (including the Parent Charter AmendmentOrganizational Documents);
(b) (i) merge or consolidate with any other Person; (ii) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property, other than (A) acquisitions in the ordinary course of business consistent with past practice in an amount not to exceed $10 million individually or $50 million in the aggregate for all such acquisitions; provided that no transaction otherwise permitted under this clause (A) shall be permitted if it, individually or in the aggregate, would, or would reasonably be expected to, prevent, enjoin, alter or materially delay the Transactions, or (B) transactions (1) solely among Parent and one or more of its wholly owned Subsidiaries or (2) solely among Parent’s wholly owned Subsidiaries; or (iii) adopt or publicly propose a plan of complete or partial liquidation, dissolution, recapitalization or restructuring, or resolutions providing for or authorizing such a liquidation, dissolution, recapitalization or restructuring;
(c) (i) split, combine or reclassify any shares of its capital stock, stock (other than transactions (A) solely among Parent and one or more of its wholly owned Subsidiaries or (B) solely among Parent’s wholly owned Subsidiaries); (ii) amend any term or alter any rights of any of its outstanding equity securities; (iii) declare, set aside or pay any dividend or make any other distribution (whether in cash, stock or stock, property or any combination thereof) in respect of any shares of its capital stockstock or other securities, except for (A) other than dividends or distributions by any of its wholly-owned Subsidiaries and (B) regular quarterly cash dividends by Parent with customary record and payment dates on the shares a Subsidiary of Parent Common Stock not in excess to Parent or a wholly owned Subsidiary of $0.12 per share for the quarter ended June 30, 2018 and $0.14 per quarter thereafter, Parent; or (iiiiv) redeem, repurchase repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any securities of Parent Securities or any Subsidiary of Parent or any rights, warrants or options to acquire any such shares or other securities, other than (A) repurchases of shares of Parent Common Stock in connection with the exercise of Parent Stock Options or the vesting or settlement of Parent Restricted Stock Awards, Parent RSU Awards or Parent PSU Awards, in each case outstanding as of the date of this Agreement in accordance with the present terms of the Parent Stock Plans and applicable award agreements of such Parent Stock Options, Parent Restricted Stock Awards, Parent RSU Awards and Parent PSU Awards or (B) the completion of Parent’s previously announced redemption of all of its outstanding warrants to purchase shares of Parent Common Stock that were issued under the Warrant Agreement, dated September 10, 2015, by and between Double Eagle Acquisition Corp. (“Double Eagle”) and Continental Stock Transfer & Trust Company, as warrant agent, as part of the units sold in Double Eagle’s initial public offering;
(d) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock or any securities 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 the issuance of any shares of Parent Common Stock upon the exercise of Parent Stock Options, the vesting or settlement of shares of Parent Restricted Stock Awards, Parent RSU Awards or Parent PSU Awards that are outstanding on the date of this Agreement in accordance with the present terms of the Parent Stock Plans and applicable award agreements of such Parent Stock Options, Parent Restricted Stock Awards, Parent RSU Awards and Parent PSU Awards or (ii) enter into any agreement with respect to the voting of any of its capital stock;
(e) authorize, make or incur any capital expenditures or obligations or liabilities in connection therewith, other than (i) as set forth in Section 7.1(e) of the Parent Disclosure Schedule and (ii) any other capital expenditures not to exceed $150,000,000 in the aggregate;
(f) except for the real property noted as listed for sale in Section 5.22 of the Parent Disclosure Schedule, transfer, sell, lease or otherwise dispose of any Subsidiary Securitiesor any division thereof or of Parent or any assets, securities or property, other than (i) transfers, sales, leases or other dispositions in the ordinary course of business consistent with past practice in an amount not to exceed $10 million in the aggregate for all such dispositions; or (ii) transactions (A) solely among Parent and one or more of its wholly owned Subsidiaries or (B) solely among Parent’s wholly owned Subsidiaries;
(g) sell, assign, transfer or otherwise dispose of, license or sublicense (other than pursuant to non-exclusive licenses or sublicenses granted to Third Parties in the ordinary course of business consistent with past practice), abandon, allow to lapse, or otherwise fail to take any action necessary to maintain, enforce or protect, any material Parent Owned IP;
(i) make any material loans, advances or capital contributions to any other Person, other than loans, advances or capital contributions (A) by Parent to one or more of its wholly owned Subsidiaries or (B) by any Subsidiary of Parent to Parent or any wholly owned Subsidiary of Parent, or (ii) incur, assume, guarantee, repay or repurchase any Indebtedness, other than (w) any optional redemption by Xxxxxxxx Scotsman International, Inc. of up to 10% of the aggregate principal amount of its outstanding 6.875% Senior Secured Notes due 2023 in accordance with Section 3.7(e) of the Indenture, dated August 6, 2018, by and between Xxxxx Finance Sub, Inc., as escrow issuer, and Deutsche Bank Trust Company Americas, as trustee and collateral agent, as supplemented from time to time, (x) pursuant to the Financing, (y) the incurrence or repayment of loans (or issuance or terminations of letters of credit or similar instruments) pursuant to the Parent Credit Agreement (A) in the ordinary course of business consistent with past practice and/or (B) in connection with the consummation of acquisitions or investments otherwise permitted hereunder or to fund the redemption contemplated by clause (w) above, but in an amount not to exceed $50,000,000 in aggregate for all such incurrences pursuant to this clause (y)(B) and/or (z) the issuance of debt securities pursuant to a Parent Notes Permitted Refinancing;
(i) other than in connection with the cashless exercise Financing, create or incur any Lien (except for a Permitted Lien) on any material asset (including any Parent Owned IP);
(j) other than in connection with the Financing, (i) enter into any Parent Material Contract (including by amendment of stock options any Contract that is not a Parent Material Contract such that such Contract becomes a Parent Material Contract), other than in the ordinary course of business consistent with past practice; (ii) terminate, renew, extend or amend in any material respect any Parent Material Contract or waive any material right thereunder, other than in the ordinary course of business consistent with past practice; or (iii) enter into, terminate, renew, extend or amend or waive any right under any Related Party Contract (including, for the avoidance of doubt, the Shareholders Agreement and the Holdings Shareholders Agreement);
(k) terminate, suspend, abrogate, amend or modify any material Parent Permit in a manner material and adverse to Parent and its Subsidiaries, taken as a whole;
(l) except as required by (x) Applicable Law or (y) the terms of any Parent Employee Plan as in effect as of the date hereof including the grant of annual equity-based awards in the ordinary course of business consistent with past practice, with the aggregate grant date fair value of such awards not to exceed an aggregate grant date fair value of $9.9 million: (i) grant any change in control, retention, severance or termination pay to (or amend any existing arrangement with) any of the current or former Parent Service Providers; (ii) enter into any employment, offer letter, term sheet, deferred compensation, consulting, bonus, change in control, severance or other similar agreement (or any amendment to any such existing agreement) with any of the current or former Parent Service Providers; (iii) establish, adopt, amend or enter into any Parent Employee Plan or Collective Bargaining Agreement; (iv) grant or amend any equity or equity-based awards to, or discretionarily accelerate the vesting or payment of any such awards held by, any current or former Parent Service Provider; or (v) increase the compensation, bonus or other benefits payable to any current or former Parent Service Providers (other than increases in base compensation of not more than 4% in the aggregate to management or high-level employees and in each case in the ordinary course of business consistent with past practice);
(m) make any material change in any method of accounting or accounting principles or practice, except for any such change required by GAAP or Regulation S-X, as approved by its independent public accountants;
(i) make or change any material Tax election, (ii) change any annual Tax accounting period, (iii) adopt or change any material method of Tax accounting, (iv) enter into any material closing agreement with respect to Taxes or (v) settle or surrender any material Tax claim, audit or assessment;
(o) except as set forth in Section 7.1(o) of the Parent Disclosure Schedule, settle or compromise, or propose to settle or compromise, any claim, action, suit, investigation, or Proceeding, pending or threatened, and involving or against Parent or any of its Subsidiaries, other than those involving only a monetary payment by Parent or any of its Subsidiaries not to exceed $250,000 individually and $2,000,000 in the aggregate; provided that in no event shall Parent or any of its Subsidiaries settle or compromise, or propose to settle or compromise, without the Company’s prior written consent, (i) any class action or collective action claims or (ii) any other claim, action, suit, investigation, regulatory examination or Proceeding (A) that relates to the Transactions, (B) that seeks injunctive or other equitable relief, or (C) that relates to or asserts (1) infringement, misappropriation or other violation by Parent or any of its Subsidiaries of any Person’s Intellectual Property or (2) infringement, misappropriation or other violation by any Person of any Parent Owned IP;
(p) enter into any transaction between Parent or any of its Subsidiaries, on the one hand, and any of Parent’s Affiliates (other equity incentivesthan Parent and its Subsidiaries), on the other hand;
(q) knowingly and intentionally take any action that would reasonably be expected to make any representation or warranty of Parent hereunder inaccurate in any respect at, or immediately prior to, the Effective Time;
(r) write up, write down or write off the book value of any of its assets, other than (i) in the ordinary course of business and consistent with past practice or (ii) as may be consistent with Parent’s financial accounting policies and procedures and GAAP as determined in consultation with Parent’s outside auditor; or
(s) agree, commit or publicly propose to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Mobile Mini Inc)
Conduct of Parent. Except (w) with From the prior written consent date of this Agreement until the earlier of the Effective Time and the termination of this Agreement, (A) except (x) as prohibited or required by Applicable Law, (y) as set forth in Section 7.01 of the Parent Disclosure Schedule, or (z) as otherwise required or expressly contemplated by this Agreement, unless the Company shall otherwise consent (which consent shall not 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 Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business in the ordinary course of business consistent with past practice and (II) use its commercially reasonable best efforts to preserve intact the its business organizations of Parent organization and its Subsidiaries and the relations and goodwill of all material suppliers, material relationships with customers, material licensors members, suppliers. Providers, Ii censors. licensees and Governmental Authorities, in each case with respect to Parent other Third Parties and its Subsidiaries, and to keep available the services of the its present officers and key employees employees; provided that (i) no action by Parent or any of Parent its Subsidiaries permitted by an exception to any of Section 7 01 (a) through Section 7.0l(e) will be a breach of this sentence and (ii) Parent's or any of its Subsidiaries' failure to take any action prohibited by any of Section 7.0ICal through Section 7.0l(e) will not be a breach of this sentence and (B) Parent shall, and shall cause each of its Subsidiaries to, conduct its business in accordance with the restriction set forth in Section 7.01 (B) of the Parent Disclosure Schedule. Without limiting the generality of the foregoing, subject to Section 8.09, except (wx) with as prohibited or required by Applicable Law, (y) as set forth in Section 7.01 of the Parent Disclosure Schedule or (z) as otherwise required or expressly contemplated by this Agreement, without the Company's prior written consent of the Company (which consent shall not be unreasonably withheld, . conditioned or delayed with respect to the matters set forth in clause (d) through (l) and, insofar as related thereto, clause (m) belowdelayed), (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 Law, . Parent shall not, nor . and shall it permit any cause each of its Subsidiaries not to:
(a) amend its certificate of incorporation, bylaws adopt or other similar organizational documents, except for propose any change to the Parent Charter Amendment;Organizational Documents in a manner that would be materially adverse to the Company's shareholders (whether by merger. consolidation or otherwise):
(b) (i) splitacquire (including by merger, combine consolidation or reclassify acquisition of stock or assets) any shares interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property, other than (A) acquisitions of any of the foregoing in an amount not to exceed $2,000,000,000 individually or $5,000,000,000 in the aggregate, (B) acquisitions of securities under Parent's investment portfolio consistent with Parent's investment policy and (C) transactions (I) solely among Parent and one or more of its capital stockwholly owned Subsidiaries or (2) solely among Parent's wholly owned Subsidiaries, or (ii) declare, set aside adopt a plan of complete or pay any dividend partial liquidation or other distribution (whether in cash, stock dissolution with respect to Parent or property or any combination thereof) in respect of its capital stock, except for (A) dividends by any of its wholly-owned Subsidiaries and (B) regular quarterly cash dividends by Parent with customary record and payment dates on the shares of Parent Common Stock not in excess of $0.12 per share for the quarter ended June 30, 2018 and $0.14 per quarter thereafter, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Parent Securities or any Parent Subsidiary Securities, other than in connection with the cashless exercise of stock options and any other equity incentivesMerger Sub;
Appears in 1 contract
Samples: Merger Agreement
Conduct of Parent. Except From the date hereof until the Effective Time, Parent and its Subsidiaries shall, except as set forth in Section 7.01 of the Parent Disclosure Schedule and except to the extent that the Company shall otherwise consent in writing (wwhich consent shall not 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 perform their material obligations when due, subject to good faith disputes over those obligations, and use commercially reasonable efforts to (i) maintain their properties in good operating condition, (ii) keep available the services of its officers and key employees, and (iii) preserve their relationships with customers, suppliers, licensors, licensees and other third parties with which Parent or its Subsidiaries has business dealings. Without limiting the generality of the foregoing, from the date hereof until the Effective Time, without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), (x) except as set forth on in Section 7.01 of the Parent Disclosure ScheduleSchedule or as expressly contemplated by this Agreement, Parent shall not and shall cause its Subsidiaries not to:
(a) adopt or propose any change in Parent’s memorandum and articles of association;
(b) make any material changes to MergerSub’s certificate of incorporation;
(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 class 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 (A) the issuance of shares of upon the exercise of share options or pursuant to Parent’s long-term incentive plans, (yB) the grant of stock based compensation to directors or employees in the ordinary course of business 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;
(f) acquire or dispose of (whether by merger, consolidation or acquisition or sale of stock or assets) any corporation, partnership or other person or division or business unit thereof or any equity interest therein if such acquisition or disposition (i) would create a substantial risk of delay in the consummation of the Merger or the other 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 Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business in the ordinary course and (II) use its reasonable best efforts to preserve intact the business organizations of Parent and its Subsidiaries and 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, subject to Section 8.09, except (w) with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed 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 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, except for the Parent Charter Amendment;
(b) (i) split, combine or reclassify any shares of its capital stock, (ii) declare, set aside would involve the acquisition or pay any dividend or other distribution disposition of a “significant subsidiary” (whether as such term is defined in cash, stock or property or any combination thereofSection 1-02 of Regulation S-X) in respect of its capital stock, except for (A) dividends by any of its wholly-owned Subsidiaries and (B) regular quarterly cash dividends by Parent with customary record and payment dates on the shares of Parent Common Stock not in excess of $0.12 per share for the quarter ended June 30, 2018 and $0.14 per quarter thereafter, or (iii) redeem, repurchase would create a substantial risk to the termination or otherwise acquire expiration of any waiting period applicable to the Merger under the HSR Act or offer the receipt of any approval under Foreign Antitrust Laws applicable to redeem, repurchase, the Merger; or
(g) agree or otherwise acquire make a binding commitment to do any Parent Securities or any Parent Subsidiary Securities, other than in connection with of the cashless exercise of stock options and any other equity incentives;foregoing.
Appears in 1 contract
Conduct of Parent. Except From the Execution Date until the Closing, Parent shall, and shall cause Merger Sub to, except as expressly required by this Agreement or any Transaction Document, as required by applicable Law or COVID-19 Measures or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except (w) with as described in the prior written consent corresponding subsection of Section 6.1 of the Parent Disclosure Letter, (x) as otherwise expressly required by this Agreement or any Transaction Document, (y) as required by applicable Law or COVID-19 Measures or (z) as the Company shall otherwise consent to in writing (which consent shall not be unreasonably withheld, conditioned conditioned, delayed or delayeddenied), (x) as set forth on Section 7.01 of the Parent Disclosure Schedule, (y) for the transactions contemplated by this Agreement, the Separation Agreement will not and the Ancillary Agreements or as otherwise expressly required or permitted hereby or thereby or (z) as required by Applicable Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business in the ordinary course and (II) use its reasonable best efforts to preserve intact the business organizations of Parent and its Subsidiaries and 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, subject to Section 8.09, except (w) with the prior written consent of the Company (which consent shall will not be unreasonably withheld, conditioned or delayed 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 Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend its certificate of incorporationchange, bylaws modify or other similar organizational documentsamend, except for or seek any approval from the Parent Stockholders to change, modify or amend, the Parent Trust Agreement, the Parent Organizational Documents or the organizational documents of Merger Sub, other than to effectuate the Parent Restated Charter Amendmentand the Parent Restated Bylaws;
(b) (i) splitmake, combine or reclassify any shares of its capital stock, (ii) declare, set aside or pay any dividend dividends on, or make any other distribution (whether in cash, stock or property or any combination thereofproperty) in respect of its capital stock, except for (A) dividends by any of its wholly-owned Subsidiaries and outstanding capital stock or other equity interests; (Bii) regular quarterly cash dividends by Parent with customary record and payment dates on split, combine, reclassify or otherwise change any of its capital stock or other equity interests; or (iii) other than the redemption of any shares of Parent Common Stock not required by the Redemption Offer or as otherwise required by Parent’s Organizational Documents in excess of $0.12 per share for order to consummate the quarter ended June 30Transactions, 2018 and $0.14 per quarter thereafterrepurchase, or (iii) redeem, repurchase redeem or otherwise acquire acquire, or offer to redeem, repurchase, redeem or otherwise acquire acquire, any Parent Securities capital stock of, or other equity interests in, Parent;
(c) enter into, or permit any Parent Subsidiary Securitiesof the assets owned or used by it to become bound by, any Contract, other than as expressly required in connection with the cashless Transactions;
(d) other than as expressly required by the Sponsor Support Agreement, enter into, renew or amend in any material respect, 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 (x) Indebtedness for borrowed money or guarantee incurred between Parent and Merger Sub and (y) Indebtedness for borrowed money not to exceed an aggregate of $1,500,000 between Parent and Sponsor;
(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 material liabilities, debts or obligations, other than the Parent Expenses;
(g) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than Merger Sub);
(h) make any changes with respect to its accounting policies or procedures, except as required by changes in Law or GAAP;
(i) (i) issue, sell, grant or authorize the issuance, sale or grant of any shares of capital stock or other 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) in connection with the exercise of stock options and any Parent Warrants outstanding on the Execution Date, (B) any Working Capital Warrants (as defined in the Parent Warrant Agreement) or (C) the Transactions or (ii) amend, modify or waive any of the terms or rights set forth in any Parent Warrant, the Parent Warrant Agreement, any Parent Right or the Parent Rights Agreement, including any amendment, modification or reduction of the warrant price set forth therein, other than pursuant to the Sponsor Support Agreement;
(j) except as contemplated by the Parent Incentive Plan, (i) 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) except in the ordinary course of business consistent with past practice, 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 incentivessecurities of, any corporation, partnership, limited liability company, association, joint venture or other entity or organization or any division thereof; or (ii) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent or its Subsidiaries;
(m) make any 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 or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any other Person;
(o) enter into any new line of business outside of the business currently conducted by Parent and its Subsidiaries as of the Execution Date;
(p) fail to maintain, cancel or materially change coverage under, in a manner materially detrimental to Parent or Merger Sub, any insurance policy maintained with respect to Parent or Merger Sub and their assets and properties;
(q) settle any Proceeding, except claims not involving Parent Stockholder Litigation (which shall be subject to Section 6.12), in the ordinary course of business or where such settlement is covered by insurance or involves only the payment of monetary damages in an amount not more than $250,000 in the aggregate; or
(r) enter into any Contract, or otherwise become obligated, to do, or authorize any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Monterey Capital Acquisition Corp)
Conduct of Parent. Except (wa) for matters set forth in Section 7.01-1 of the Parent Disclosure Letter, (b) as expressly required or as expressly permitted by this Agreement, (c) as required by Applicable Law or (d) with the prior written consent of the Company (which consent shall not 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 from and the Ancillary Agreements or as otherwise expressly required or permitted hereby or thereby or (z) as required by Applicable Law, from after the date hereof until and prior to the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (Ii) use its reasonable best efforts to conduct its business in the ordinary course of business and (IIii) use its reasonable best efforts to (x) preserve intact the business organizations of Parent and its Subsidiaries and the relations and goodwill of in all material suppliersrespects its present business organization, material customers, material licensors and Governmental Authorities, in each case with respect to Parent and its Subsidiaries, and to (y) keep available the services of the present its directors, officers and key employees and (z) maintain satisfactory relationships with its customers, lenders, suppliers, Governmental Authorities and others having material business relationships with it; provided that for the avoidance of doubt, Parent shall not be obligated to take any action that would not be permitted by the following sentence of this Section 7.01 and its Subsidiariesany action permitted by the following sentence of this Section 7.01 shall not be deemed a breach of this sentence of this Section 7.01. Without limiting the generality of the foregoing, subject to Section 8.09, except (wa) for matters set forth in Section 7.01-2 of the Parent Disclosure Letter, (b) as expressly required by this Agreement, (c) as required by Applicable Law or (d) with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed with respect delayed), from and after the date hereof and prior 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 LawEffective Time, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) (i) amend its certificate the articles of incorporationincorporation of Parent or (ii) amend in a manner that would reasonably be expected to have the effect of delaying, preventing or restraining the consummation of the Merger or that would be materially or disproportionately (relative to other holders of Parent Stock) adverse to the Company’s stockholders, the bylaws or other similar organizational documents, except for the Parent Charter Amendmentof Parent;
(b) (i) split, combine combine, or reclassify any shares of its capital stock;
(c) issue or sell any Parent Securities, other than the issuance of (A) any shares of Parent Stock upon the exercise of Parent Stock Options or settlement of Parent RSUs that are outstanding on the date of this Agreement, or otherwise in respect of grants under Parent Stock Plans in the ordinary course of business, (iiB) the issuance of shares of Parent Stock under any Parent Employee Plan in the ordinary course of business and (C) awards granted under Parent Stock Plans in the ordinary course of business;
(d) except with respect to quarterly cash dividends (not in excess of $0.21 per share of Parent Stock, but subject to increase for quarterly periods occurring on or after October 1, 2019, by no more than $0.01 per share on an annual basis) paid in the ordinary course of business, declare, set aside or pay any dividend dividends on, or make any other distribution distributions (whether in cash, stock or stock, property or any combination thereofotherwise) in respect of, the capital stock of its capital stockParent;
(e) adopt a plan or agreement of, except or resolutions providing for or authorizing, complete or partial liquidation or dissolution of Parent;
(Af) dividends acquire (by merger, consolidation, acquisition or stock or assets or otherwise), directly or indirectly, any assets constituting a business in a single transaction or series of its wholly-owned Subsidiaries and (B) regular quarterly cash dividends by Parent related transactions with customary record and payment dates on the shares of Parent Common Stock not a fair market value in excess of $0.12 per share for 200,000,000 in the quarter ended June 30aggregate;
(g) sell, 2018 and $0.14 per quarter thereafter, or (iii) redeem, repurchase lease or otherwise acquire transfer, directly or offer indirectly, assets constituting a business in a single transaction or series of related transactions with a fair market value in excess of $200,000,000 in the aggregate;
(h) make any change in any financial accounting principles, methods or practices, in each case except for any such change required by GAAP or Applicable Law, including Regulation S-X under the 1934 Act; or
(i) agree, authorize or commit to redeem, repurchase, or otherwise acquire do any Parent Securities or any Parent Subsidiary Securities, other than in connection with of the cashless exercise of stock options and any other equity incentives;foregoing.
Appears in 1 contract
Conduct of Parent. Except During the Pre-Closing Period, except as (wi) with expressly required or expressly contemplated by this Agreement, (ii) set forth in Section 6.05 of the prior written consent of Parent Letter, (iii) required by applicable Law or (iv) consented to in advance in writing by the Company (which such 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 Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (IA) use its reasonable best efforts to conduct its business in all material respects in the ordinary course of business consistent with past practice and (IIB) use its reasonable best efforts to preserve intact the business organizations of Parent and its Subsidiaries and the relations and goodwill of in all material respects its business organization and material business relationships with suppliers, material customersvendors, material licensors and Governmental Authorities, customers and other Persons with which Parent has material business relationships; provided, that neither Parent nor any of its Subsidiaries shall be required (or shall without the Company’s prior consent, not to be unreasonably withheld, conditioned or delayed) to make any payments to its business relationship counterparties, beyond that paid in each case with respect the ordinary course of business in order to Parent maintain such business relationships. In addition to and its Subsidiaries, and to keep available the services of the present officers and key employees of Parent and its Subsidiaries. Without without limiting the generality of the foregoing, subject to Section 8.09during the Pre-Closing Period, except as (w) with expressly required or expressly contemplated by this Agreement, (x) set forth in Section 6.05 of the prior written consent of Parent Letter, (y) required by applicable Law or (z) consented to in advance in writing by the Company (which such consent shall not to be unreasonably withheld, conditioned or delayed with respect to the matters set forth in clause (d) through (l) and, insofar as related thereto, clause (m) belowdelayed), (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 Law, Parent shall not, nor and shall it permit any of cause its Subsidiaries not to:
(a) amend its certificate amend, adopt any amendment to or otherwise change (whether by merger, consolidation or otherwise) any of incorporation, bylaws the Parent Governing Documents or other similar organizational documentsthe Parent OP Partnership Agreement, except for such amendments or changes as would not have or reasonably be expected to have, individually or in the aggregate, a Parent Charter AmendmentMaterial Adverse Effect;
(b) (i) split, combine or reclassify any shares of its capital stock, (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock shares or property or any combination thereof) in respect of its capital stockshares or other equity interests, except for (A) dividends or Table of Contents distributions paid by any of its wholly-owned Subsidiaries to Parent or other Subsidiaries of Parent and (B) the authorization and payment by Parent of regular quarterly cash dividends and by Parent OP of regular quarterly distributions, payable in accordance with customary record and payment dates on the past practice;
(c) split, combine, subdivide, exchange or reclassify any shares of Parent Common Stock not in excess of $0.12 per share for including pursuant to any recapitalization, merger, issuer tender or exchange offer or other similar transaction, unless the quarter ended June 30, 2018 and $0.14 per quarter thereafter, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Parent Securities or any Parent Subsidiary Securities, other than in connection with the cashless exercise of stock options Offer Consideration and any other equity incentivesamounts payable pursuant to the Transactions contemplated in this Agreement are equitably adjusted in order to provide the (former) shareholders of the Company the same economic benefit as contemplated by this Agreement prior to such event.
(d) enter into a material new line of business unrelated to the lines of business of Parent and its Subsidiaries conducted as of the date hereof;
(e) knowingly take or fail to take any action which would reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Subsidiary of Parent to fail to be treated as any of (1) a partnership or disregarded entity for United States federal income tax purposes or (2) a REIT, a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be; or
(f) agree, resolve or commit to do any of the foregoing. Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit Parent from taking any action, at any time or from time to time, that in the reasonable judgment of Parent, upon advice of counsel to Parent, is reasonably necessary for Parent to maintain its qualification as a REIT under the Code for any period or portion thereof ending on or prior to the Closing or to avoid incurring entity level income or excise Taxes under the Code, including making dividend or other distribution payments to stockholders of Parent in accordance with this Agreement or otherwise. If Parent determines that it is necessary to take any such action, it shall notify the Company as soon as reasonably practicable and prior to taking such action.
Appears in 1 contract
Conduct of Parent. Except (wa) Subject to the limitations and exceptions set forth in the several sentences of this Section 8.01, from the date hereof until the Closing, Parent shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course consistent with past practice and use its reasonable best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations, (iii) keep available the prior written consent services of its directors, officers and key employees, (iv) maintain satisfactory relationships with its customers, lenders, suppliers and others having material business relationships with it and (v) ensure that all payments made, liabilities incurred and transactions entered into represent bona fide obligations or transactions arising in the ordinary course of business for full and valid consideration. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, as required by Applicable Law, or as set forth in Section 8.01 of the Parent Disclosure Schedule or to the extent the Company shall otherwise consent in writing (which consent shall not 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 subject to any constraints under Applicable Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business in the ordinary course and (II) use its reasonable best efforts to preserve intact the business organizations of Parent and its Subsidiaries and 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, subject to Section 8.09, except (w) with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed 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 Law, Parent shall not, nor shall it permit any of its Subsidiaries to:
(ai) amend not change its certificate methods of incorporation, bylaws or other similar organizational documentsaccounting, except as required by concurrent changes in GAAP as agreed to by its independent public accountants;
(ii) comply in all material respects with its and its Subsidiaries’ existing risk management policies and practices;
(iii) not make any material change in the methodology used in the calculation of reserves for the Parent Charter Amendment;future payment of benefits, losses, claims, expenses and similar purposes (including claims litigation) under any material insurance policies or Reinsurance Agreements to which any Insurance Entity is or becomes a party; and
(iv) not agree, resolve or commit to (A) do any action restricted by this Section 8.01 or (B) accept any restriction that would prevent it or any of its Subsidiaries from taking any action required by this Section 8.01.
(b) Without limiting Section 10.01, the Company shall, prior to the Closing, have the right to terminate this Agreement upon giving written notice to Parent if:
(i) splitSince the date hereof, combine Parent shall have issued, or reclassify any shares of its capital stockcommitted to issue, Parent Shares (iiin one ore more transactions) 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 (A) dividends by any of its wholly-owned Subsidiaries and (B) regular quarterly cash dividends by Parent with customary record and payment dates on the shares of Parent Common Stock not having an aggregate Market Value in excess of $0.12 per share for US$500,000,000 as of the quarter ended June 30, 2018 and $0.14 per quarter thereafter, date of the applicable issuance or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Parent Securities or any Parent Subsidiary Securities, other than commitment in connection with the cashless exercise acquisition (by merger, consolidation, acquisition or stock or assets or otherwise), directly or indirectly, of stock options and any assets, securities, properties, interests or businesses; or
(ii) Parent shall have entered into a definitive agreement with respect to or consummated any transaction (including the consolidation of Parent with, or the merger or amalgamation of Parent with or into any Person) pursuant to which the outstanding Parent Shares have or will be converted into or exchanged for securities of any other equity incentives;Person, cash or other property.
Appears in 1 contract
Conduct of Parent. Except (w) with the prior written consent of the Company (which consent shall not 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 Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business in the ordinary course and (II) use its reasonable best efforts to preserve intact the business organizations of Parent and its Subsidiaries and 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, subject to Section 8.09, except (w) with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed 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 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, except for the Parent Charter Amendment;
(b) (i) split, combine or reclassify any shares of its capital stock, (ii) 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 (A) dividends by any of its wholly-owned Subsidiaries and (B) regular quarterly cash dividends by Parent with customary record and payment dates on the shares of Parent Common Stock not in excess of $0.12 per share for the quarter ended June 30, 2018 and $0.14 per quarter thereafter, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Parent Securities or any Parent Subsidiary Securities, other than in connection with the cashless exercise of stock options and any other equity incentives;
Appears in 1 contract
Samples: Merger Agreement (Transportation Systems Holdings Inc.)
Conduct of Parent. (a) During the period from the date of this Agreement to the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, except as expressly provided in this Agreement or with the written consent of Company (which consent will not be unreasonably withheld or delayed) and except as would not be reasonably expected to have a Material Adverse Effect with respect to Parent and Citizens Business Bank, Parent and Citizens Business Bank will timely file all Parent SEC Reports and any other filings required to be filed with any applicable Governmental Entity and will comply in all material respects with all of the applicable rules enforced or promulgated by any Governmental Entity with which any Parent SEC Reports or any other filings will be filed and none will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they will be made, not misleading. Any financial statement contained in any such Parent SEC Reports, or other filing that is intended to present the financial position of Parent and its Subsidiaries will fairly present the financial position of Parent and its Subsidiaries in all material respects and will be prepared in accordance with GAAP consistently applied during the periods involved or, to the extent then required, the applicable accounting procedures required by any Governmental Entity with which such Parent SEC Reports or other filing will be filed, in all material respects.
(b) Except (w) as expressly permitted by this Agreement or with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), (x) as set forth on Section 7.01 of during 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 Law, period from the date hereof until of this Agreement to the earlier of the Effective Time, Parent shall, and shall cause each Time or the termination of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business this Agreement in the ordinary course and (II) use its reasonable best efforts to preserve intact the business organizations of Parent and its Subsidiaries and the relations and goodwill of all material suppliers, material customers, material licensors and Governmental Authorities, in each case accordance 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, subject to Section 8.09, except (w) with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed 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 LawArticle VIII, Parent shall not, nor and shall it not permit any of its Subsidiaries to, except as may be required by applicable Law or policies imposed by any Governmental Entity:
(ai) amend its certificate take, or omit to take, any action that would reasonably be expected to prevent, materially impede, materially impair, or materially delay the consummation of incorporationthe transactions contemplated by this Agreement including, bylaws without limitation, adversely affecting the ability of the parties to obtain the Requisite Regulatory Approvals of any Governmental Entity required to complete the transactions contemplated hereby, the Approvals, or other similar organizational documents, except for the Parent Charter AmendmentCompany Shareholder Approval or materially increase the period of time necessary to obtain such Requisite Regulatory Approvals or the Company Shareholder Approval;
(b) (i) split, combine or reclassify any shares of its capital stock, (ii) declarewillfully take, set aside or pay willfully omit to take, any dividend or other distribution (whether action that is reasonably likely to result in cash, stock or property or any combination thereof) in respect of its capital stock, except for (A) dividends by any of its wholly-owned Subsidiaries and the conditions to the Merger set forth in Section 7.1 or Section 7.3 not being satisfied;
(Biii) regular quarterly cash dividends by enter into or agree to enter into an Acquisition Proposal unless such Acquisition Proposal requires completion of the Merger and, if applicable, provides that the Company’s shareholders acquiring Parent with customary record and payment dates Common Stock in the Merger will receive, on the account of their shares of Parent Common Stock not to be received in excess the Merger, the same consideration in the transaction contemplated by the Acquisition Proposal, if completed, at the same time such consideration is received by other holders of $0.12 per share for the quarter ended June 30, 2018 and $0.14 per quarter thereafterParent Common Stock; or
(iv) willfully take, or (iii) redeemwillfully omit to take, repurchase any action that would prevent or otherwise acquire or offer to redeem, repurchaseimpede, or otherwise acquire any Parent Securities could reasonably be expected to prevent or any Parent Subsidiary Securitiesimpede, other than in connection with the cashless exercise Merger from qualifying as a “reorganization” within the meaning of stock options and any other equity incentives;Section 368(a) of the Code.
Appears in 1 contract
Conduct of Parent. Except (w) with From the prior written consent date of this Agreement until the earlier of the Effective Time and the termination of this Agreement, (A) except (x) as prohibited or required by Applicable Law, (y) as set forth in Section 7.01 of the Parent Disclosure Schedule, or (z) as otherwise required or expressly contemplated by this Agreement, unless the Company shall otherwise consent (which consent shall not 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 Law, from the date hereof until the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (I) use its reasonable best efforts to conduct its business in the ordinary course of business consistent with past practice and (II) use its commercially reasonable best efforts to preserve intact the its business organizations of Parent organization and its Subsidiaries and the relations and goodwill of all material relationships with customers, members, suppliers, material customersProviders, material licensors licensors, licensees and Governmental Authorities, in each case with respect to Parent other Third Parties and its Subsidiaries, and to keep available the services of the its present officers and key employees employees; provided that (i) no action by Parent or any of Parent its Subsidiaries permitted by an exception to any of Section 7.01(a) through Section 7.01(e) will be a breach of this sentence and (ii) Parent’s or any of its Subsidiaries’ failure to take any action prohibited by any of Section 7.01(a) through Section 7.01(e) will not be a breach of this sentence and (B) Parent shall, and shall cause each of its Subsidiaries to, conduct its business in accordance with the restriction set forth in Section 7.01(B) of the Parent Disclosure Schedule. Without limiting the generality of the foregoing, subject to Section 8.09, except (wx) with as prohibited or required by Applicable Law, (y) as set forth in Section 7.01 of the Parent Disclosure Schedule or (z) as otherwise required or expressly contemplated by this Agreement, without the Company’s prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed with respect to the matters set forth in clause (d) through (l) and, insofar as related thereto, clause (m) belowdelayed), (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 Law, Parent shall not, nor and shall it permit any cause each of its Subsidiaries not to:
(a) amend its certificate of incorporation, bylaws adopt or other similar organizational documents, except for propose any change to the Parent Charter AmendmentOrganizational Documents in a manner that would be materially adverse to the Company’s shareholders (whether by merger, consolidation or otherwise);
(bi) acquire (including by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property, other than (A) acquisitions of any of the foregoing in an amount not to exceed $2,000,000,000 individually or $5,000,000,000 in the aggregate, (B) acquisitions of securities under Parent’s investment portfolio consistent with Parent’s investment policy and (C) transactions (1) solely among Parent and one or more of its wholly owned Subsidiaries or (2) solely among Parent’s wholly owned Subsidiaries, or (ii) adopt a plan of complete or partial liquidation or dissolution with respect to Parent or Merger Sub;
(c) (i) split, combine or reclassify any shares of its capital stock, stock (iiother than transactions (1) declare, set aside solely among Parent and one or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect more of its capital stock, except for (A) dividends by any of its wholly-wholly owned Subsidiaries and (B) regular quarterly cash dividends by Parent with customary record and payment dates on the shares of Parent Common Stock not in excess of $0.12 per share for the quarter ended June 30, 2018 and $0.14 per quarter thereafter, or (iii2) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Parent Securities or any Parent Subsidiary Securities, other than in connection with the cashless exercise of stock options and any other equity incentives;solely among Parent’s wholly owned Subsidiaries),
Appears in 1 contract
Samples: Merger Agreement
