Conduct of Parent. (a) From the date of this Agreement until the earlier of the First Effective Time and the termination of this Agreement, except (w) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (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 have given its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its business in all material respects in the ordinary course of business; provided, that (i) no action by Parent or any of its Subsidiaries to the extent expressly permitted by an exception to any of Section 7.01(b)(i) through Section 7.01(b)(vi) shall 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(b)(i) through Section 7.01(b)(vi) by virtue of the Company’s failure to consent to such action shall not be deemed to be a breach of this Section 7.01(a). (b) From the date of this Agreement until the earlier of the First Effective Time and the termination of this Agreement, except (w) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (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 (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall not, and shall cause each of its Subsidiaries not to: (i) adopt or propose any change (A) to the Parent Organizational Documents that would (x) adversely impact the holders of Parent Ordinary Shares (including holders of Company Common Stock that will become holders of Parent ADSs as a result of the First Merger) or (y) increase the risk of not satisfying the conditions set forth in Section 9.01 or Section 9.02 or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreement, or (B) the organizational documents of Bidco or either Merger Sub; (ii) (A) split, combine or reclassify any shares of Parent, (B) declare, set aside or pay any dividend or make any other distribution (whether in cash, stock, property or any combination thereof) in respect of any shares of Parent, other than regular cash dividends in the ordinary course of business consistent with past practice (including with respect to the timing of declaration, and the record and payment dates) in an amount not to exceed £0.10 per Parent Ordinary Share in any 12-month period (appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or other similar events relating to the Parent Ordinary Shares), or (C) redeem, repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of the Equity Securities of Parent, other than repurchases of Parent Ordinary Shares or Existing Parent ADSs (whether directly by Parent or by a third party employee benefit trust funded by Parent) in connection with the exercise, vesting or settlement of Parent Equity Awards (including in satisfaction of any amounts required to be deducted or withheld under Applicable Law), in each case 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 to the extent permitted by this Agreement; (iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of Parent or any securities convertible into or exchangeable for any such shares or any rights, warrants or options to acquire any such shares or convertible securities, other than (A) the issuance of any shares of Parent Ordinary Shares or Existing Parent ADSs on the exercise, vesting or settlement of Parent Equity Awards, (B) the grant of Parent Equity Awards to employees, directors or individual independent contractors of Parent or any of its Subsidiaries pursuant to Parent’s equity compensation plans or (C) in connection with the Parent ADS Issuance; (iv) (A) sell substantially all of the consolidated assets of Parent, (B) adopt a plan of complete or partial liquidation or dissolution or (C) enter into a business combination transaction pursuant to which the pre-transaction Parent Ordinary Shares as of the closing of such transaction no longer represent a majority of the outstanding voting power of Parent or its successor or, if there is a publicly traded parent company directly or indirectly holding Parent or its successor as a result of the transaction, of the publicly traded company; (v) take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to (A) prevent or impede the Mergers, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code or (B) cause the stockholders of the Company (other than any Excepted Stockholder) to recognize gain pursuant to Section 367(a)(1) of the Code; or (vi) agree, resolve or commit to do any of the foregoing. (c) Anything to the contrary set forth in this Agreement notwithstanding, Parent shall not, and shall cause its Affiliates not to, directly or indirectly (whether by merger, consolidation or otherwise), acquire, purchase, lease or license or otherwise enter into a transaction with (or agree to acquire, purchase, lease or license or otherwise enter into a transaction with) any business, corporation, partnership, association or other business organization or division or part thereof that has one or more products, whether marketed or in development, that compete, or if commercialized would compete, with one or more material products or material services of the Company or any of its Subsidiaries, if doing so would reasonably be expected to (i) impose any material delay in the satisfaction of, or increase materially the risk of not satisfying, the conditions set forth in Section 9.02(c) (to the extent related to any Antitrust Law) or the conditions set forth in Section 9.01(h), (ii) materially increase the risk of any Governmental Authority entering an Order prohibiting or enjoining the consummation of the Mergers or (iii) otherwise prevent or materially delay the consummation of the Mergers (including the Debt Financing). The fact that a merger, acquisition or similar transaction requires approval under the Antitrust Laws shall not in and of itself restrict such transaction under this Section 7.01(c).
Appears in 1 contract
Conduct of Parent. Except (a) From the date of this Agreement until the earlier of the First Effective Time and the termination of this Agreement, except (w) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (y) as for matters set forth in Section 7.01 7.01-1 of the Parent Disclosure ScheduleLetter, or (zb) as otherwise expressly required or as expressly contemplated permitted by this Agreement, unless (c) as required by Applicable Law or (d) with the Company shall have given its prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), from and after the date hereof and prior to the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (i) use commercially its reasonable best efforts to conduct its business in all material respects in the ordinary course of business; providedbusiness and (ii) use its reasonable best efforts to (x) preserve intact in all material respects its present business organization, that (iy) no action by Parent or any keep available the services of its Subsidiaries 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 the extent expressly take any action that would not be permitted by an exception to the following sentence of this Section 7.01 and any action permitted by the following sentence of this Section 7.01(b)(i) through Section 7.01(b)(vi) 7.01 shall not be deemed 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(b)(i) through Section 7.01(b)(vi) by virtue of the Company’s failure to consent to such action shall not be deemed to be a breach of this Section 7.01(a).
(b) From 7.01. Without limiting the date of this Agreement until the earlier generality of the First Effective Time and the termination of this Agreementforegoing, except (wa) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (y) as for matters set forth in Section 7.01 7.01-2 of the Parent Disclosure ScheduleLetter, or (zb) as otherwise expressly required or expressly contemplated by this Agreement, without (c) as required by Applicable Law or (d) with the Company’s prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), from and after the date hereof and prior to the Effective Time, Parent shall not, and shall cause each of its Subsidiaries not to:
(a) (i) adopt amend the articles of incorporation of Parent or propose any change (Aii) to the Parent Organizational Documents amend in a manner that would (x) adversely impact reasonably be expected to have the holders effect of Parent Ordinary Shares (including holders of Company Common Stock that will become holders of Parent ADSs as a result of the First Merger) delaying, preventing or (y) increase the risk of not satisfying the conditions set forth in Section 9.01 or Section 9.02 or otherwise prevent or materially delay restraining the consummation of the transactions contemplated by this AgreementMerger or that would be materially or disproportionately (relative to other holders of Parent Stock) adverse to the Company’s stockholders, or (B) the organizational documents bylaws of Bidco or either Merger SubParent;
(ii) (Ab) split, combine combine, or reclassify any shares of Parentits 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, (B) 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, property or any combination thereofotherwise) in respect of any shares of, the capital stock of Parent, other than regular cash dividends in the ordinary course of business consistent with past practice (including with respect to the timing of declaration, and the record and payment dates) in an amount not to exceed £0.10 per Parent Ordinary Share in any 12-month period (appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or other similar events relating to the Parent Ordinary Shares), or (C) redeem, repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of the Equity Securities of Parent, other than repurchases of Parent Ordinary Shares or Existing Parent ADSs (whether directly by Parent or by a third party employee benefit trust funded by Parent) in connection with the exercise, vesting or settlement of Parent Equity Awards (including in satisfaction of any amounts required to be deducted or withheld under Applicable Law), in each case 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 to the extent permitted by this Agreement;
(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of Parent or any securities convertible into or exchangeable for any such shares or any rights, warrants or options to acquire any such shares or convertible securities, other than (A) the issuance of any shares of Parent Ordinary Shares or Existing Parent ADSs on the exercise, vesting or settlement of Parent Equity Awards, (B) the grant of Parent Equity Awards to employees, directors or individual independent contractors of Parent or any of its Subsidiaries pursuant to Parent’s equity compensation plans or (C) in connection with the Parent ADS Issuance;
(iv) (A) sell substantially all of the consolidated assets of Parent, (Be) adopt a plan of or agreement of, or resolutions providing for or authorizing, complete or partial liquidation or dissolution or (C) enter into a business combination transaction pursuant to which the pre-transaction Parent Ordinary Shares as of the closing of such transaction no longer represent a majority of the outstanding voting power of Parent or its successor or, if there is a publicly traded parent company directly or indirectly holding Parent or its successor as a result of the transaction, of the publicly traded companyParent;
(vf) take acquire (by merger, consolidation, acquisition or stock or assets or otherwise), directly or indirectly, any action assets constituting a business in a single transaction or knowingly fail to take series of related transactions with a fair market value in excess of $200,000,000 in the aggregate;
(g) sell, lease or otherwise transfer, directly or 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 action where change in any financial accounting principles, methods or practices, in each case except for any such action change required by GAAP or failure to act could reasonably be expected to (A) prevent or impede Applicable Law, including Regulation S-X under the Mergers, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code or (B) cause the stockholders of the Company (other than any Excepted Stockholder) to recognize gain pursuant to Section 367(a)(1) of the Code1934 Act; or
(vii) agree, resolve authorize or commit to do any of the foregoing.
(c) Anything to the contrary set forth in this Agreement notwithstanding, Parent shall not, and shall cause its Affiliates not to, directly or indirectly (whether by merger, consolidation or otherwise), acquire, purchase, lease or license or otherwise enter into a transaction with (or agree to acquire, purchase, lease or license or otherwise enter into a transaction with) any business, corporation, partnership, association or other business organization or division or part thereof that has one or more products, whether marketed or in development, that compete, or if commercialized would compete, with one or more material products or material services of the Company or any of its Subsidiaries, if doing so would reasonably be expected to (i) impose any material delay in the satisfaction of, or increase materially the risk of not satisfying, the conditions set forth in Section 9.02(c) (to the extent related to any Antitrust Law) or the conditions set forth in Section 9.01(h), (ii) materially increase the risk of any Governmental Authority entering an Order prohibiting or enjoining the consummation of the Mergers or (iii) otherwise prevent or materially delay the consummation of the Mergers (including the Debt Financing). The fact that a merger, acquisition or similar transaction requires approval under the Antitrust Laws shall not in and of itself restrict such transaction under this Section 7.01(c).
Appears in 1 contract
Conduct of Parent. (a) From the date of this Agreement until the earlier of the First Effective Time and the termination of this Agreement, (A) except (wx) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (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 have given its prior written otherwise consent (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its business in all material respects in the ordinary course of businessbusiness consistent with past practice and use its commercially reasonable efforts to preserve intact its business organization and relationships with customers, members, suppliers, Providers, licensors, licensees and other Third Parties and keep available the services of its present officers and employees; provided, provided that (i) no action by Parent or any of its Subsidiaries to the extent expressly permitted by an exception to any of Section 7.01(b)(i7.01(a) through Section 7.01(b)(vi7.01(e) shall 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(b)(i7.01(a) through Section 7.01(b)(vi7.01(e) by virtue of the Company’s failure to consent to such action shall will not be deemed to 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(a).
(b7.01(B) From the date of this Agreement until the earlier of the First Effective Time and Parent Disclosure Schedule. Without limiting the termination generality of this Agreementthe foregoing, except (wx) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (y) as set forth in Section 7.01 of the Parent Disclosure Schedule, Schedule or (z) as otherwise required or expressly contemplated by this Agreement, without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall not, and shall cause each of its Subsidiaries not to:
(ia) adopt or propose any change (A) to the Parent Organizational Documents in a manner that would be materially adverse to the Company’s shareholders (xwhether by merger, consolidation or otherwise);
(i) adversely impact the holders of Parent Ordinary Shares acquire (including holders by merger, consolidation or acquisition of Company Common Stock that will become holders 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 Parent ADSs as a result any of the First Mergerforegoing 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 (y2) increase the risk of not satisfying the conditions set forth in Section 9.01 or Section 9.02 or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreementsolely among Parent’s wholly owned Subsidiaries, or (Bii) the organizational documents adopt a plan of Bidco complete or either partial liquidation or dissolution with respect to Parent or Merger Sub;
(iic) (Ai) split, combine or reclassify any shares of its capital stock (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), (Bii) 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, property or any combination thereof) in respect of any shares of Parentits capital stock or other securities, other than (A) in the case of Parent, regular cash dividends in the ordinary course of business business, consistent with past practice (including with respect to the timing of declarationpractice, and the record and payment dates) in an amount not to exceed £0.10 $0.50 per share of Parent Ordinary Share in any 12-month period Common Stock per quarter (appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or other similar events relating to the Parent Ordinary SharesCommon Stock), or (CB) dividends or distributions by a Subsidiary of Parent to Parent or a wholly owned Subsidiary of Parent, or (iv) redeem, repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of the Equity Securities its securities or any securities of any Subsidiary of Parent, other than in the ordinary course of business, consistent with past practice, including repurchases of shares of Parent Ordinary Shares Common Stock (A) pursuant to accelerated share repurchase programs or Existing Parent ADSs agreements in the ordinary course of business, consistent with past practice, and (whether directly by Parent or by a third party employee benefit trust funded by ParentB) in connection with the exercise, exercise or the vesting or 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 to the extent permitted by this Agreement;
(iiid) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of Parent its capital stock or any securities convertible into or exchangeable for any such shares exercisable for, or any rights, warrants or options to acquire acquire, any such shares capital stock or any such convertible securities, other than (Ai) the issuance of any shares of Parent Ordinary Shares or Existing Parent ADSs on Common Stock upon the exercise, vesting or settlement exercise of Parent Equity AwardsAwards or other equity and 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 plans, or (Civ) in connection with the Parent ADS Share Issuance;
(ive) 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) sell substantially all solely among Parent and one or more of the consolidated assets of Parent, (B) adopt a plan of complete or partial liquidation or dissolution or (C) enter into a business combination transaction pursuant to which the pre-transaction Parent Ordinary Shares as of the closing of such transaction no longer represent a majority of the outstanding voting power of Parent or its successor or, if there is a publicly traded parent company directly or indirectly holding Parent or its successor as a result of the transaction, of the publicly traded company;
(v) take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to (A) prevent or impede the Mergers, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code wholly owned Subsidiaries or (B) cause the stockholders of the Company (other than any Excepted Stockholder) to recognize gain pursuant to Section 367(a)(1) of the Codesolely among Parent’s wholly owned Subsidiaries; or
(vif) agree, resolve commit or commit propose to do any of the foregoing.
(c) Anything to the contrary set forth in this Agreement notwithstanding, Parent shall not, and shall cause its Affiliates not to, directly or indirectly (whether by merger, consolidation or otherwise), acquire, purchase, lease or license or otherwise enter into a transaction with (or agree to acquire, purchase, lease or license or otherwise enter into a transaction with) any business, corporation, partnership, association or other business organization or division or part thereof that has one or more products, whether marketed or in development, that compete, or if commercialized would compete, with one or more material products or material services of the Company or any of its Subsidiaries, if doing so would reasonably be expected to (i) impose any material delay in the satisfaction of, or increase materially the risk of not satisfying, the conditions set forth in Section 9.02(c) (to the extent related to any Antitrust Law) or the conditions set forth in Section 9.01(h), (ii) materially increase the risk of any Governmental Authority entering an Order prohibiting or enjoining the consummation of the Mergers or (iii) otherwise prevent or materially delay the consummation of the Mergers (including the Debt Financing). The fact that a merger, acquisition or similar transaction requires approval under the Antitrust Laws shall not in and of itself restrict such transaction under this Section 7.01(c).
Appears in 1 contract
Samples: Merger Agreement (CVS HEALTH Corp)
Conduct of Parent. (a) From the date of this Agreement until the earlier of the First Effective Time and the termination of this Agreement, (A) except (wx) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (y) as set forth in Section Section 7.01 of the Parent Disclosure Schedule, or (z) as otherwise required or expressly contemplated by this Agreement, unless the Company shall have given its prior written otherwise consent (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its business in all material respects in the ordinary course of businessbusiness consistent with past practice and use its commercially reasonable efforts to preserve intact its business organization and relationships with customers, members, suppliers, Providers, licensors, licensees and other Third Parties and keep available the services of its present officers and employees; provided, provided that (i) no action by Parent or any of its Subsidiaries to the extent expressly permitted by an exception to any of Section 7.01(b)(iSection 7.01(a) through Section 7.01(b)(viSection 7.01(e) shall will be a breach of this sentence sentence and (ii) Parent’s or any of its Subsidiaries’ failure to take any action prohibited by any of Section 7.01(b)(iof Section 7.01(a) through Section 7.01(b)(viSection 7.01(e) by virtue of the Company’s failure to consent to such action shall will not be deemed to 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(a).
(b7.01(B) From the date of this Agreement until the earlier of the First Effective Time and Parent Disclosure Schedule. Without limiting the termination generality of this Agreementthe foregoing, except (wx) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (y) as set forth in Section Section 7.01 of the Parent Disclosure Schedule, Schedule or (z) as otherwise required or expressly contemplated by this Agreement, without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall not, and shall cause each of its Subsidiaries not to:
(ia) adopt or propose any change (A) to the Parent Organizational Documents in a manner that would be materially adverse to the Company’s shareholders (xwhether by merger, consolidation or otherwise);
(i) adversely impact the holders of Parent Ordinary Shares acquire (including holders by merger, consolidation or acquisition of Company Common Stock that will become holders 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 Parent ADSs as a result any of the First Mergerforegoing 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 (y2) increase the risk of not satisfying the conditions set forth in Section 9.01 or Section 9.02 or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreementsolely among Parent’s wholly owned Subsidiaries, or (Bii) the organizational documents adopt a plan of Bidco complete or either partial liquidation or dissolution with respect to Parent or Merger Sub;
(iic) (Ai) split, combine or reclassify any shares of its capital stock (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), (Bii) 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, property or any combination thereof) in respect of any shares of Parentits capital stock or other securities, other than (A) in the case of Parent, regular cash dividends in the ordinary course of business business, consistent with past practice (including with respect to the timing of declarationpractice, and the record and payment dates) in an amount not to exceed £0.10 $0.50 per share of Parent Ordinary Share in any 12-month period Common Stock per quarter (appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or other similar events relating to the Parent Ordinary SharesCommon Stock), or (CB) dividends or distributions by a Subsidiary of Parent to Parent or a wholly owned Subsidiary of Parent, or (iv) redeem, repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of the Equity Securities its securities or any securities of any Subsidiary of Parent, other than in the ordinary course of business, consistent with past practice, including repurchases of shares of Parent Ordinary Shares Common Stock (A) pursuant to accelerated share repurchase programs or Existing Parent ADSs agreements in the ordinary course of business, consistent with past practice, and (whether directly by Parent or by a third party employee benefit trust funded by ParentB) in connection with the exercise, exercise or the vesting or 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 to the extent permitted by this Agreement;
(iiid) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of Parent its capital stock or any securities convertible into or exchangeable for any such shares exercisable for, or any rights, warrants or options to acquire acquire, any such shares capital stock or any such convertible securities, other than (Ai) the issuance of any shares of Parent Ordinary Shares or Existing Parent ADSs on Common Stock upon the exercise, vesting or settlement exercise of Parent Equity AwardsAwards or other equity and 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 plans, or (Civ) in connection with the Parent ADS Share Issuance;
(ive) 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) sell substantially all solely among Parent and one or more of the consolidated assets of Parent, (B) adopt a plan of complete or partial liquidation or dissolution or (C) enter into a business combination transaction pursuant to which the pre-transaction Parent Ordinary Shares as of the closing of such transaction no longer represent a majority of the outstanding voting power of Parent or its successor or, if there is a publicly traded parent company directly or indirectly holding Parent or its successor as a result of the transaction, of the publicly traded company;
(v) take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to (A) prevent or impede the Mergers, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code wholly owned Subsidiaries or (B) cause the stockholders of the Company (other than any Excepted Stockholder) to recognize gain pursuant to Section 367(a)(1) of the Codesolely among Parent’s wholly owned Subsidiaries; or
(vif) agree, resolve commit or commit propose to do any of the foregoing.
(c) Anything to the contrary set forth in this Agreement notwithstanding, Parent shall not, and shall cause its Affiliates not to, directly or indirectly (whether by merger, consolidation or otherwise), acquire, purchase, lease or license or otherwise enter into a transaction with (or agree to acquire, purchase, lease or license or otherwise enter into a transaction with) any business, corporation, partnership, association or other business organization or division or part thereof that has one or more products, whether marketed or in development, that compete, or if commercialized would compete, with one or more material products or material services of the Company or any of its Subsidiaries, if doing so would reasonably be expected to (i) impose any material delay in the satisfaction of, or increase materially the risk of not satisfying, the conditions set forth in Section 9.02(c) (to the extent related to any Antitrust Law) or the conditions set forth in Section 9.01(h), (ii) materially increase the risk of any Governmental Authority entering an Order prohibiting or enjoining the consummation of the Mergers or (iii) otherwise prevent or materially delay the consummation of the Mergers (including the Debt Financing). The fact that a merger, acquisition or similar transaction requires approval under the Antitrust Laws shall not in and of itself restrict such transaction under this Section 7.01(c).
Appears in 1 contract
Samples: Merger Agreement (Aetna Inc /Pa/)
Conduct of Parent. (a) From the date of this Agreement until the earlier of the First Effective Time and the termination of this Agreement, (A) except (wx) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (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 have given its prior written otherwise consent (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its business in all material respects in the ordinary course of businessbusiness consistent with past practice and use its commercially reasonable efforts to preserve intact its business organization and relationships with customers, members, suppliers. Providers, Ii censors. licensees and other Third Parties and keep available the services of its present officers and employees; provided, provided that (i) no action by Parent or any of its Subsidiaries to the extent expressly permitted by an exception to any of Section 7.01(b)(i7 01 (a) through Section 7.01(b)(vi7.0l(e) shall will be a breach of this sentence and (ii) Parent’s 's or any of its Subsidiaries’ ' failure to take any action prohibited by any of Section 7.01(b)(i) 7.0ICal through Section 7.01(b)(vi7.0l(e) by virtue of the Company’s failure to consent to such action shall will not be deemed to 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(a).
7.01 (bB) From the date of this Agreement until the earlier of the First Effective Time and Parent Disclosure Schedule. Without limiting the termination generality of this Agreementthe foregoing, except (wx) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (y) as set forth in Section 7.01 of the Parent Disclosure Schedule, Schedule or (z) as otherwise required or expressly contemplated by this Agreement, without the Company’s 's prior written consent (which consent shall not be unreasonably withheld, . conditioned or delayed), . Parent shall not, . and shall cause each of its Subsidiaries not to:
(ia) adopt or propose any change (A) to the Parent Organizational Documents in a manner that would be materially adverse to the Company's shareholders (xwhether by merger. consolidation or otherwise):
(i) adversely impact the holders of Parent Ordinary Shares acquire (including holders by merger, consolidation or acquisition of Company Common Stock that will become holders of Parent ADSs as a result of the First Mergerstock or assets) any interest in any corporation, partnership, other business organization or (y) increase the risk of not satisfying the conditions set forth in Section 9.01 any division thereof or Section 9.02 any assets, securities or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreementproperty, or (B) the organizational documents of Bidco or either Merger Sub;
(ii) other than (A) split, combine or reclassify any shares of Parent, (B) declare, set aside or pay any dividend or make any other distribution (whether in cash, stock, property or any combination thereof) in respect acquisitions of any shares of Parent, other than regular cash dividends in the ordinary course of business consistent with past practice (including with respect to the timing of declaration, and the record and payment dates) foregoing in an amount not to exceed £0.10 per Parent Ordinary Share $2,000,000,000 individually or $5,000,000,000 in any 12-month period (appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or other similar events relating to the Parent Ordinary Shares), or (C) redeem, repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of the Equity Securities of Parent, other than repurchases of Parent Ordinary Shares or Existing Parent ADSs (whether directly by Parent or by a third party employee benefit trust funded by Parent) in connection with the exercise, vesting or settlement of Parent Equity Awards (including in satisfaction of any amounts required to be deducted or withheld under Applicable Law), in each case 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 to the extent permitted by this Agreement;
(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of Parent or any securities convertible into or exchangeable for any such shares or any rights, warrants or options to acquire any such shares or convertible securities, other than (A) the issuance of any shares of Parent Ordinary Shares or Existing Parent ADSs on the exercise, vesting or settlement of Parent Equity Awardsaggregate, (B) the grant acquisitions of Parent Equity Awards to employees, directors or individual independent contractors of Parent or any of its Subsidiaries pursuant to securities under Parent’s equity compensation plans or 's investment portfolio consistent with Parent's investment policy and (C) in connection with the transactions (I) solely among Parent ADS Issuance;
and one or more of its wholly owned Subsidiaries or (iv2) solely among Parent's wholly owned Subsidiaries, or (A) sell substantially all of the consolidated assets of Parent, (Bii) adopt a plan of complete or partial liquidation or dissolution or (C) enter into a business combination transaction pursuant with respect to which the pre-transaction Parent Ordinary Shares as of the closing of such transaction no longer represent a majority of the outstanding voting power of Parent or its successor or, if there is a publicly traded parent company directly or indirectly holding Parent or its successor as a result of the transaction, of the publicly traded companyMerger Sub;
(v) take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to (A) prevent or impede the Mergers, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code or (B) cause the stockholders of the Company (other than any Excepted Stockholder) to recognize gain pursuant to Section 367(a)(1) of the Code; or
(vi) agree, resolve or commit to do any of the foregoing.
(c) Anything to the contrary set forth in this Agreement notwithstanding, Parent shall not, and shall cause its Affiliates not to, directly or indirectly (whether by merger, consolidation or otherwise), acquire, purchase, lease or license or otherwise enter into a transaction with (or agree to acquire, purchase, lease or license or otherwise enter into a transaction with) any business, corporation, partnership, association or other business organization or division or part thereof that has one or more products, whether marketed or in development, that compete, or if commercialized would compete, with one or more material products or material services of the Company or any of its Subsidiaries, if doing so would reasonably be expected to (i) impose any material delay in the satisfaction of, or increase materially the risk of not satisfying, the conditions set forth in Section 9.02(c) (to the extent related to any Antitrust Law) or the conditions set forth in Section 9.01(h), (ii) materially increase the risk of any Governmental Authority entering an Order prohibiting or enjoining the consummation of the Mergers or (iii) otherwise prevent or materially delay the consummation of the Mergers (including the Debt Financing). The fact that a merger, acquisition or similar transaction requires approval under the Antitrust Laws shall not in and of itself restrict such transaction under this Section 7.01(c).
Appears in 1 contract
Samples: Merger Agreement
Conduct of Parent. (a) From the date of this Agreement until the earlier of the First Effective Time and the termination of this Agreement, (A) except (wx) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (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 have given its prior written otherwise consent (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its business in all material respects in the ordinary course of businessbusiness consistent with past practice and use its commercially reasonable efforts to preserve intact its business organization and relationships with customers, members, suppliers, Providers, licensors, licensees and other Third Parties and keep available the services of its present officers and employees; provided, provided that (i) no action by Parent or any of its Subsidiaries to the extent expressly permitted by an exception to any of Section 7.01(b)(i7.01(a) through Section 7.01(b)(vi7.01(e) shall 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(b)(i7.01(a) through Section 7.01(b)(vi7.01(e) by virtue of the Company’s failure to consent to such action shall will not be deemed to 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(a).
(b7.01(B) From the date of this Agreement until the earlier of the First Effective Time and Parent Disclosure Schedule. Without limiting the termination generality of this Agreementthe foregoing, except (wx) as prohibited or required by Applicable Law, (x) in connection with any action reasonably taken, or reasonably omitted to be taken, in connection with COVID-19 or any COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (x), to the extent permitted under Applicable Law and practicable under the circumstances, Parent shall provide prior notice to and consult in good faith with the Company prior to taking such action), (y) as set forth in Section 7.01 of the Parent Disclosure Schedule, Schedule or (z) as otherwise required or expressly contemplated by this Agreement, without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), Parent shall not, and shall cause each of its Subsidiaries not to:
(ia) adopt or propose any change (A) to the Parent Organizational Documents in a manner that would be materially adverse to the Company’s shareholders (x) adversely impact the holders of Parent Ordinary Shares (including holders of Company Common Stock that will become holders of Parent ADSs as a result of the First Merger) whether by merger, consolidation or (y) increase the risk of not satisfying the conditions set forth in Section 9.01 or Section 9.02 or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreement, or (B) the organizational documents of Bidco or either Merger Subotherwise);
(iii) 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) split, combine or reclassify any shares of Parent, (B) declare, set aside or pay any dividend or make any other distribution (whether in cash, stock, property or any combination thereof) in respect acquisitions of any shares of Parent, other than regular cash dividends in the ordinary course of business consistent with past practice (including with respect to the timing of declaration, and the record and payment dates) foregoing in an amount not to exceed £0.10 per Parent Ordinary Share $2,000,000,000 individually or $5,000,000,000 in any 12-month period (appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or other similar events relating to the Parent Ordinary Shares), or (C) redeem, repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any of the Equity Securities of Parent, other than repurchases of Parent Ordinary Shares or Existing Parent ADSs (whether directly by Parent or by a third party employee benefit trust funded by Parent) in connection with the exercise, vesting or settlement of Parent Equity Awards (including in satisfaction of any amounts required to be deducted or withheld under Applicable Law), in each case 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 to the extent permitted by this Agreement;
(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of Parent or any securities convertible into or exchangeable for any such shares or any rights, warrants or options to acquire any such shares or convertible securities, other than (A) the issuance of any shares of Parent Ordinary Shares or Existing Parent ADSs on the exercise, vesting or settlement of Parent Equity Awardsaggregate, (B) the grant acquisitions of Parent Equity Awards to employees, directors or individual independent contractors of Parent or any of its Subsidiaries pursuant to securities under Parent’s equity compensation plans or investment portfolio consistent with Parent’s investment policy and (C) in connection with the transactions (1) solely among Parent ADS Issuance;
and one or more of its wholly owned Subsidiaries or (iv2) solely among Parent’s wholly owned Subsidiaries, or (A) sell substantially all of the consolidated assets of Parent, (Bii) adopt a plan of complete or partial liquidation or dissolution or (C) enter into a business combination transaction pursuant with respect to which the pre-transaction Parent Ordinary Shares as of the closing of such transaction no longer represent a majority of the outstanding voting power of Parent or its successor or, if there is a publicly traded parent company directly or indirectly holding Parent or its successor as a result of the transaction, of the publicly traded companyMerger Sub;
(v) take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to (A) prevent or impede the Mergers, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code or (B) cause the stockholders of the Company (other than any Excepted Stockholder) to recognize gain pursuant to Section 367(a)(1) of the Code; or
(vi) agree, resolve or commit to do any of the foregoing.
(c) Anything to the contrary set forth in this Agreement notwithstanding(i) split, combine or reclassify any shares of its capital stock (other than transactions (1) solely among Parent shall not, and shall cause its Affiliates not to, directly or indirectly (whether by merger, consolidation or otherwise), acquire, purchase, lease or license or otherwise enter into a transaction with (or agree to acquire, purchase, lease or license or otherwise enter into a transaction with) any business, corporation, partnership, association or other business organization or division or part thereof that has one or more products, whether marketed or in development, that compete, or if commercialized would compete, with one or more material products or material services of the Company or any of its Subsidiaries, if doing so would reasonably be expected to (i) impose any material delay in the satisfaction of, or increase materially the risk of not satisfying, the conditions set forth in Section 9.02(c) (to the extent related to any Antitrust Law) or the conditions set forth in Section 9.01(h), (ii) materially increase the risk of any Governmental Authority entering an Order prohibiting or enjoining the consummation of the Mergers wholly owned Subsidiaries or (iii2) otherwise prevent or materially delay the consummation of the Mergers (including the Debt Financingsolely among Parent’s wholly owned Subsidiaries). The fact that a merger, acquisition or similar transaction requires approval under the Antitrust Laws shall not in and of itself restrict such transaction under this Section 7.01(c).,
Appears in 1 contract
Samples: Merger Agreement
