Conduct of the Business of Parent. During the Pre-Closing Period, except (w) as set forth in Part 4.3 of the Parent Disclosure Schedule, (x) to the extent necessary to comply with Parent’s obligations under this Agreement, (y) as necessary to ensure that the Parent complies with applicable Laws, or (z) with the Company’s consent (which shall not be unreasonably withheld, conditioned or delayed): Parent shall not: (a) change or amend the Parent Charter or Parent’s bylaws, or authorize or propose the same; (b) reclassify, combine split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock in any manner that would have (or would reasonably be expected to have) a material and adverse impact on the value of the Parent Common Stock, except for repurchases made in the Ordinary Course of Business with respect to of equity awards issued by Parent; (B) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock except for dividends or other distributions made by any direct or indirect wholly-owned Subsidiary of Parent to Parent or one of its other wholly-owned Subsidiaries; or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than the withholding of Parent Common Stock to satisfy the exercise price and/or Tax obligations with respect to awards granted pursuant to any Parent Equity Plan; (c) issue, deliver, transfer or sell, or authorize to issue, deliver, transfer or sell, any shares of Parent Capital Stock or securities convertible into, or subscriptions, rights, calls, conversion rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, or authorize or propose any change in its equity capitalization or capital structure; provided, however, that the Parent may issue shares of Parent Common Stock in connection with the Contemplated Transactions, in connection with the exercise of options, warrants or other rights to purchase Parent Capital Stock outstanding as of the date of this Agreement, or pursuant to the Parent Plans; (d) enter into or adopt any plan or agreement of complete or partial liquidation, restructuring, recapitalization or dissolution, or file a voluntary petition in bankruptcy or commence a voluntary legal procedure for reorganization, arrangement, adjustment, release or composition of Debt in bankruptcy or other similar Laws now or hereafter in effect; (e) handle its payables other than in the ordinary course of business consistent with past practice; (f) Acquire another business or restructure, reorganize or completely or partially liquidate, in each case, to the extent that such action would, or would reasonably be expected to, (A) require the financial statements of such acquired Person or business to be incorporated within the Form S-4 under Regulation S-X of the Securities Act, or (B) otherwise prevent, materially delay or materially impair the consummation of the Merger; (g) Take any action where such action would have an Effect described in clause (ii) of the definition of Parent Material Adverse Effect; or (h) agree or commit to take any of the actions described in clauses (a) through (g) of this Section 4.3 (Conduct of the Business of Parent).
Appears in 3 contracts
Samples: Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Rafael Holdings, Inc.)
Conduct of the Business of Parent. (a) During the Pre-Closing Interim Period, Parent shall, and shall cause each of its Subsidiaries, except (wi) as set forth in Part 4.3 of the Parent Disclosure Schedule, (x) to the extent necessary to comply with Parent’s obligations under expressly permitted or required by this Agreement, (yii) as necessary to ensure that the required by applicable Law, (iii) in connection with a Parent complies with applicable Laws, COVID Action or (ziv) with the Company’s prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned conditioned, or delayed): ), to use reasonable best efforts to operate in the ordinary course of business. Notwithstanding the foregoing, Parent and its Subsidiaries shall not:
(a) change be permitted to take, and nothing in this Agreement shall prohibit Parent or amend the its Subsidiaries from taking, any Parent Charter or Parent’s bylaws, or authorize or propose the same;COVID Action.
(b) reclassifyWithout limiting the generality of the foregoing, combine splitduring the Interim Period, subdivide except (A) as otherwise expressly permitted or redeemrequired by this Agreement, (B) as set forth in Section 7.01(b) of the Parent Disclosure Letter, (C) as required by and not in contravention of applicable Law or purchase or otherwise acquire(D) in connection with a Parent COVID Action, directly or indirectlyParent shall not, nor shall it permit any of its capital stock in any manner that would have (or would reasonably be expected to have) a material and adverse impact on Subsidiaries to, without the value prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned, or delayed):
(i) amend or propose to amend the Charter Documents of Parent Common Stock(whether by merger, except for repurchases made consolidation or otherwise);
(ii) propose or adopt any plan of merger, consolidation, reorganization, liquidation, scheme of arrangement, tender offer or dissolution of Parent or any of its material Subsidiaries, file a petition in bankruptcy under any provisions of federal or state bankruptcy Law on behalf of Parent or any of its material Subsidiaries or consent to the Ordinary Course filing of Business with respect to any bankruptcy petition against Parent or any of equity awards issued by Parent; its material Subsidiaries under any similar applicable Law;
(iii) (A) split, combine, or reclassify or otherwise amend the terms of any Parent Securities, (B) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock except for dividends or other distributions made by any direct or indirect wholly-owned Subsidiary of Parent to Parent or one of its other wholly-owned Subsidiaries; or (C) repurchase, redeem redeem, or otherwise acquire, or offer to repurchase, redeem redeem, or otherwise acquire, any capital stock Parent Securities (other than for purposes of effecting a net exercise or voting settlement or net share withholding, in satisfaction of any exercise price or required tax withholdings, under, or in connection with the forfeiture of, any Parent Equity Award), (C) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of Parent (other than upon the grant, exercise or settlement of any Parent Equity Award) or (D) establish a record date for, declare, set aside, accrue or pay any dividend or distribution (whether in cash, stock, property, or otherwise) in respect of, or equity interests inenter into any Contract with respect to the voting of, Parent any shares or other securities (other than dividends from its direct or indirect wholly owned Subsidiaries);
(iv) other than with respect to any Indebtedness incurred or repaid in connection with the transactions contemplated by this Agreement (including any Debt Financing or Take-Out Financing), issue, sell, pledge, dispose of, transfer, lease, grant any Lien on, or otherwise encumber or enter into any Contract or other agreement with respect to any Parent Securities or Parent Subsidiary or any securities Securities, other than the issuance of shares of Parent Ordinary Shares upon the grant, exercise or settlement of any Parent Subsidiary convertible into Equity Award;
(v) other than any Indebtedness incurred or exchangeable repaid in connection with the transactions contemplated by this Agreement (including any Debt Financing or exercisable for capital stock Take-Out Financing), repurchase, prepay, assume or voting incur any Indebtedness or guarantee any such Indebtedness of another Person, issue or sell any debt securities ofor options, or equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stockdebt securities of Parent or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or interestsother Contract to maintain any financial statement condition of any other Person (other than any wholly owned Subsidiary of it) or enter into any arrangement having the economic effect of any of the foregoing, other than borrowings incurred in the withholding ordinary course of Parent Common Stock to satisfy the exercise price and/or Tax obligations with respect to awards granted pursuant to any Parent Equity Plan;
business (c) issue, deliver, transfer or sell, or authorize to issue, deliver, transfer or sell, any shares of Parent Capital Stock or securities convertible into, or subscriptions, rights, calls, conversion rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, or authorize or propose any change in its equity capitalization or capital structure; provided, however, that the Parent may issue shares of Parent Common Stock including in connection with the Contemplated Transactionsfinancing of ordinary course trade payables consistent with past practice) that do not, at any time, exceed $10,000,000 in the aggregate;
(vi) except in connection with actions permitted by Section 7.02 hereof, take any action to exempt any Person from, or make any acquisition of securities of Parent by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Parent with respect to a Parent Takeover Proposal or otherwise, including the restrictions on “business combinations” set forth in Section 203 of the DGCL, except for the Company or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement;
(vii) other than with respect to any Indebtedness incurred or repaid in connection with the exercise transactions contemplated by this Agreement (including any Debt Financing or Take-Out Financing), abandon, allow to lapse, sell, assign, transfer, grant any security interest in otherwise encumber or dispose of options, warrants or other rights to purchase any material Parent Capital Stock outstanding as of the date of this AgreementIP, or grant any right or license to any material Parent IP other than pursuant to the Parent Plans;
(d) enter non-exclusive licenses or sublicenses entered into or adopt any plan or agreement of complete or partial liquidation, restructuring, recapitalization or dissolution, or file a voluntary petition in bankruptcy or commence a voluntary legal procedure for reorganization, arrangement, adjustment, release or composition of Debt in bankruptcy or other similar Laws now or hereafter in effect;
(e) handle its payables other than in the ordinary course of business consistent with past practice;
(fviii) Acquire another business adopt or restructure, reorganize implement any stockholder rights plan or completely or partially liquidate, in each case, to the extent that such action would, or would reasonably be expected to, (A) require the financial statements of such acquired Person or business to be incorporated within the Form S-4 under Regulation S-X of the Securities Act, or (B) otherwise prevent, materially delay or materially impair the consummation of the Merger;
(g) Take any action where such action would have an Effect described in clause (ii) of the definition of Parent Material Adverse Effectsimilar arrangement; or
(hix) authorize, resolve, agree or commit to take do any of the actions described in clauses (a) through (g) of this Section 4.3 (Conduct of the Business of Parent)foregoing.
Appears in 3 contracts
Samples: Merger Agreement (Icon PLC), Merger Agreement (PRA Health Sciences, Inc.), Merger Agreement (Icon PLC)
Conduct of the Business of Parent. During the Pre-Closing Periodperiod from the date of this Agreement until the Effective Time, Parent shall, and shall cause each of its Subsidiaries, except (w) as expressly contemplated by this Agreement, as required by applicable Law, as set forth in Part 4.3 Section 5.02 of the Parent Disclosure Schedule, (x) to the extent necessary to comply with Parent’s obligations under this Agreement, (y) as necessary to ensure that the Parent complies with applicable LawsLetter, or (z) with the Company’s prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned conditioned, or delayed): Parent shall not:
(a) change or amend the Parent Charter or Parent’s bylaws), or authorize or propose the same;
(b) reclassify, combine split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of conduct its capital stock in any manner that would have (or would reasonably be expected to have) a material and adverse impact on the value of the Parent Common Stock, except for repurchases made in the Ordinary Course of Business with respect to of equity awards issued by Parent; (B) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock except for dividends or other distributions made by any direct or indirect wholly-owned Subsidiary of Parent to Parent or one of its other wholly-owned Subsidiaries; or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than the withholding of Parent Common Stock to satisfy the exercise price and/or Tax obligations with respect to awards granted pursuant to any Parent Equity Plan;
(c) issue, deliver, transfer or sell, or authorize to issue, deliver, transfer or sell, any shares of Parent Capital Stock or securities convertible into, or subscriptions, rights, calls, conversion rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, or authorize or propose any change in its equity capitalization or capital structure; provided, however, that the Parent may issue shares of Parent Common Stock in connection with the Contemplated Transactions, in connection with the exercise of options, warrants or other rights to purchase Parent Capital Stock outstanding as of the date of this Agreement, or pursuant to the Parent Plans;
(d) enter into or adopt any plan or agreement of complete or partial liquidation, restructuring, recapitalization or dissolution, or file a voluntary petition in bankruptcy or commence a voluntary legal procedure for reorganization, arrangement, adjustment, release or composition of Debt in bankruptcy or other similar Laws now or hereafter in effect;
(e) handle its payables other than business in the ordinary course of business consistent with past practice. To the extent consistent therewith, Parent shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its and its Subsidiaries’ business organization, to keep available the services of its and its Subsidiaries’ current officers and management-level employees, to preserve its and its Subsidiaries’ present relationships with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates, licensors, licensees, and other Persons having material business relationships with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Effective Time, except as otherwise expressly contemplated by this Agreement, as set forth in Section 5.02 of the Parent Disclosure Letter or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned, or delayed):
(a) Except for the Holdco Charter Amendment, amend or propose to amend its Governing Documents in a manner that would adversely affect the Company or the holders of Company Capital Stock relative to holders of Parent Common Stock;
(b) (i) split, combine, or reclassify any Parent Securities or Parent Subsidiary Securities in a manner that would adversely affect the Company or the holders of Company Common Stock relative to the other holders of Parent Common Stock, (ii) repurchase, redeem, or otherwise acquire, or offer to repurchase, redeem, or otherwise acquire, any Parent Securities or Parent Subsidiary Securities (other than in connection with the payment of the exercise price or tax withholding relating to any Parent Equity Award), or (iii) declare, set aside, or pay any dividend or distribution (whether in cash, stock, property, or otherwise) in respect of, or enter into any Contract with respect to the voting of, any shares of its capital stock (other than (A) dividends from its direct or indirect wholly-owned Subsidiaries, (B) ordinary quarterly dividends, consistent with past practice with respect to timing of declaration and payment and (C) the payment of dividends and dividend equivalents in respect of Parent Equity Awards in accordance with the terms thereof);
(c) issue, sell, pledge, dispose of, or encumber any Parent Securities or Parent Subsidiary Securities, other than (i) the issuance of shares of Parent Common Stock in connection with any Parent Equity Awards outstanding as of the date of this Agreement in accordance with its terms, (ii) the issuance of shares of Parent Common Stock in connection with any Parent Equity Award granted after the date of this Agreement in the ordinary course of business consistent with past practice and (iii) after consultation in good faith with the Company, sales or issuance of Parent Common Stock or securities convertible into Parent Common Stock in an amount sufficient to raise net proceeds equal to the Required Amount to the extent the Debt Financing is not available notwithstanding Parent’s reasonable best efforts to secure the Debt Financing (including Alternative Financing) in accordance with Section 5.17;
(d) except as set forth in Section 5.02(d) of the Parent Disclosure Letter, acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances, or capital contributions to or investments in any Person, in each case that would reasonably be expected to prevent, impede, or delay the consummation of the Mergers or other transactions contemplated by this Agreement;
(e) (i) transfer, license, sell, lease, or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber, or otherwise subject to any Lien (other than a Permitted Lien), any assets, including the capital stock or other equity interests in any Subsidiary of Parent; except (A) in the ordinary course of business consistent with past practice or (B) for any assets having an aggregate value of less than $1,000,000, or (ii) adopt or effect a material plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization;
(f) Acquire another business make any material change in any method of financial accounting principles or restructure, reorganize or completely or partially liquidatepractices, in each case, case except for any such change required by a change in GAAP or applicable Law;
(g) except to the extent expressly permitted by Section 5.04 or Article VII, take any action that such action would, is intended or that would reasonably be expected to, (A) require individually or in the financial statements of such acquired Person or business to be incorporated within the Form S-4 under Regulation S-X of the Securities Actaggregate, or (B) otherwise prevent, materially delay impede, or materially impair delay the consummation of the Merger;
(g) Take any action where such action would have an Effect described in clause (ii) of Mergers, the definition of Parent Material Adverse EffectHoldco Stock Issuance or the other transactions contemplated by this Agreement; or
(h) agree agree, authorize or commit to take do any of the actions described in clauses (a) through (g) of this Section 4.3 (Conduct of the Business of Parent)foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Us Ecology, Inc.), Merger Agreement (NRC Group Holdings Corp.)
Conduct of the Business of Parent. During the Pre-Closing Periodperiod from the date of this Agreement until the earlier of the termination of this Agreement (in accordance with its terms) or the Effective Time, Parent shall, and shall cause each of its Subsidiaries, except (w) as set forth in Part 4.3 required by applicable Law, or with the prior written consent of the Parent Disclosure Schedule, (x) to the extent necessary to comply with Parent’s obligations under this Agreement, (y) as necessary to ensure that the Parent complies with applicable Laws, or (z) with the Company’s consent Company (which consent shall not be unreasonably withheld, conditioned conditioned, or delayed): Parent shall not:
(a) change or amend the Parent Charter or Parent’s bylaws), or authorize or propose the same;
(b) reclassify, combine split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of to use its capital stock commercially reasonable efforts to conduct its business in any manner that would have (or would reasonably be expected to have) a all material and adverse impact on the value of the Parent Common Stock, except for repurchases made in the Ordinary Course of Business with respect to of equity awards issued by Parent; (B) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock except for dividends or other distributions made by any direct or indirect wholly-owned Subsidiary of Parent to Parent or one of its other wholly-owned Subsidiaries; or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than the withholding of Parent Common Stock to satisfy the exercise price and/or Tax obligations with respect to awards granted pursuant to any Parent Equity Plan;
(c) issue, deliver, transfer or sell, or authorize to issue, deliver, transfer or sell, any shares of Parent Capital Stock or securities convertible into, or subscriptions, rights, calls, conversion rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, or authorize or propose any change in its equity capitalization or capital structure; provided, however, that the Parent may issue shares of Parent Common Stock in connection with the Contemplated Transactions, in connection with the exercise of options, warrants or other rights to purchase Parent Capital Stock outstanding as of the date of this Agreement, or pursuant to the Parent Plans;
(d) enter into or adopt any plan or agreement of complete or partial liquidation, restructuring, recapitalization or dissolution, or file a voluntary petition in bankruptcy or commence a voluntary legal procedure for reorganization, arrangement, adjustment, release or composition of Debt in bankruptcy or other similar Laws now or hereafter in effect;
(e) handle its payables other than respects in the ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, between the date of this Agreement and the Effective Time, except as set forth in Section 5.02 of the Parent Disclosure Letter, or as required by applicable Law, Parent shall not, nor shall it permit any of its Subsidiaries to, without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned, or delayed):
(a) amend its Charter Documents;
(b) (i) split, combine, or reclassify any Parent Securities or Parent Subsidiary Securities, (ii) repurchase, redeem, or otherwise acquire, or offer to repurchase, redeem, or otherwise acquire, any Parent Securities or Parent Subsidiary Securities, or (iii) declare, set aside, or pay any dividend or distribution (whether in cash, stock, property, or otherwise) in respect of, or enter into any Contract with respect to the voting of, any shares of its capital stock (other than dividends from its direct or indirect wholly owned Subsidiaries and ordinary quarterly dividends, consistent with past practice with respect to timing of declaration and payment);
(c) issue, sell, pledge, dispose of, or encumber any Parent Securities or Parent Subsidiary Securities, other than the issuance of shares of Parent Common Stock upon the exercise of any Parent Equity Awards outstanding as of the date of this Agreement in accordance with its terms;
(d) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances, or capital contributions to or investments in any Person in excess of $100,000 in the aggregate;
(e) repurchase, prepay, or incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or options, warrants, calls, or other rights to acquire any debt securities of the Parent of any of its Subsidiaries, guarantee any debt securities of another Person, enter into any “keep well” or other Contract to maintain any financial statement condition of any other Person or enter into any arrangement having the economic effect of any of the foregoing, other than in connection with the financing of ordinary course trade payables consistent with past practice;
(f) Acquire another business make any material change in any method of financial accounting principles or restructure, reorganize or completely or partially liquidatepractices, in each case, to the extent that case except for any such action would, change required by a change in GAAP or would reasonably be expected to, (A) require the financial statements of such acquired Person or business to be incorporated within the Form S-4 under Regulation S-X of the Securities Act, or (B) otherwise prevent, materially delay or materially impair the consummation of the Mergerapplicable Law;
(g) Take (i) settle or compromise any action where such action would have material Tax claim, audit, or assessment for an Effect described amount materially in clause excess of the amount reserved or accrued on the Parent Balance Sheet (or most recent consolidated balance sheet included in the Parent SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the definition limitation period applicable to any material Tax claim or assessment relating to the Parent or its Subsidiaries;
(h) enter into any material agreement, agreement in principle, letter of intent, memorandum of understanding, or similar Contract with respect to any joint venture, strategic partnership, or alliance;
(i) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy;
(j) engage in any transaction with, or enter into any agreement, arrangement or understanding with, any Affiliate of the Parent Material Adverse Effector other Person covered by Item 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC;
(k) adopt or implement any stockholder rights plan or similar arrangement; or
(hl) adopt or effect a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, or other reorganization; or
(m) agree or commit to take do any of the actions described in clauses (a) through (g) of this Section 4.3 (Conduct of the Business of Parent)foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Theralink Technologies, Inc.), Merger Agreement (IMAC Holdings, Inc.)
Conduct of the Business of Parent. During the Pre-Closing Period, except (w) as set forth in Part 4.3 of the Parent Disclosure ScheduleSchedule 4.3, (x) to the extent necessary to comply with Parent’s obligations under this Agreement, (y) as necessary to ensure that the Parent complies with applicable Laws, or (z) with the Company’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed): Parent shall not:
(a) change or amend the Parent Charter or Parent’s bylawsbylaws in a manner that would materially and adversely affect the holders of shares of Parent Class A Common Stock or Parent Warrants, or authorize adversely affect the holders of Class A Common Payment Shares, Convertible Preferred Payment Shares or propose the sameParent Consideration Warrants relative to other holders of shares of Parent Capital Stock or Parent Warrants;
(b) reclassify, combine (i) split, subdivide or redeemcombine, or purchase reclassify any Parent Capital Stock in a manner that would adversely affect the Company or the holders of Parent Class A Common Stock or Parent Convertible Preferred Stock relative to the other holders of Parent Capital Stock, (ii) establish a record date for or declare, set aside, or pay any dividend or distribution (whether in cash, stock, property, or otherwise) in respect of, any shares of its capital stock, or (iii) otherwise acquire, directly or indirectly, any of its capital stock in any manner that would have (or would reasonably be expected to have) a material and adverse impact on the value of the Parent Common Stock, except for repurchases made in the Ordinary Course of Business with respect to of equity awards issued by Parent; (B) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock except for dividends or other distributions made by any direct or indirect wholly-owned Subsidiary of Parent to Parent or one of its other wholly-owned Subsidiaries; or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than the withholding of Parent Common Stock to satisfy the exercise price and/or Tax obligations with respect to awards granted pursuant to any Parent Equity Plan;
(c) issue, deliver, transfer or sell, or authorize to issue, deliver, transfer or sell, any shares of Parent Capital Stock or other equity interests (as applicable);
(c) offer, issue, deliver, grant or sell, or authorize or propose to offer, issue, deliver, grant or sell, any capital stock of, or other equity interest in, Parent or any of its Subsidiaries or any securities convertible into, or subscriptions, rights, calls, conversion any rights, warrants or options to acquire, any such capital stock or equity interest, other agreements than (i) the issuance of Parent Class A Common Stock upon the vesting, settlement, exercise or commitments lapse of any character obligating it restrictions on any equity awards granted under any Parent Equity Plan; (ii) issuances of equity awards under the Parent Equity Plans to issue any such shares or employees, directors and other convertible securities, or authorize or propose any change service providers in its equity capitalization or capital structure; provided, however, the Ordinary Course of Business (provided that the number of shares reserved for issuance under the Parent may issue Equity Plans shall not be increased); (iii) transactions between Parent and a Subsidiary of Parent or between Subsidiaries of Parent; and (iv) any organized sale of shares of Parent Class A Common Stock by Parent’s existing stockholders in connection with the Contemplated Transactions, in connection with the exercise of options, warrants or other rights to purchase Parent Capital Stock outstanding as of the date of this Agreement, or pursuant to the Parent Plansa transaction facilitated by Parent;
(d) enter into or adopt any plan or agreement of complete or partial liquidation, restructuring, recapitalization or dissolution, or file a voluntary petition in bankruptcy or commence a voluntary legal procedure for reorganization, arrangement, adjustment, release or composition of Debt in bankruptcy or other similar Laws now or hereafter in effect;
(e) handle its payables other than in the ordinary course of business consistent with past practice;
(f) Acquire another business or restructure, reorganize or completely or partially liquidate, in each case, to the extent that such action would, or would reasonably be expected to, (A) require the financial statements of such acquired Person or business to be incorporated within the Form S-4 under Regulation S-X of the Securities Act, or (B) otherwise prevent, materially delay or materially impair the consummation of the Merger;
(g) Take any action where such action would have an Effect described in clause (ii) of the definition of Parent Material Adverse Effect; or
(he) agree or commit to take any of the actions described in clauses (a) through (g) of above in this Section 4.3 (Conduct of the Business of Parent).
Appears in 1 contract
Samples: Merger Agreement (Nuvation Bio Inc.)
Conduct of the Business of Parent. During the Pre-Closing PeriodThe Parent agrees that, except (w) as set forth in Part 4.3 of the Parent Disclosure Schedule, (x) to the extent necessary to comply with Parent’s obligations under this Agreementor as permitted, (y) as necessary to ensure that the Parent complies with applicable Lawsrequired or specifically contemplated by, or (z) with otherwise described in, this Agreement or otherwise consented to or approved in writing by the Company’s consent Company (which consent or approval shall not be unreasonably withheld, conditioned withheld or delayed): Parent shall not), during the period commencing on the date hereof until the earlier of the termination of this Agreement or the Effective Time:
(a) change or amend the Parent Charter or Parent’s bylawsand each of its Subsidiaries shall conduct their respective operations in all material respects only according to their ordinary and usual course of business consistent with past practice and shall use their reasonable best efforts to preserve intact their respective business organization, or authorize or propose keep available the sameservices of their officers, employees and consultants and maintain satisfactory relationships with licensors, suppliers, distributors, clients, joint venture partners and others having significant business relationships with them;
(b) reclassifyby way of illustration and not limitation, combine neither the Parent nor any of its Subsidiaries shall:
(i) except as contemplated in the Conversion Agreement, make any change in or amendment to the Parent's articles of association, by-laws, or similar organizational documents;
(ii) except pursuant to the terms of the Conversion Agreement, issue, sell, pledge, dispose of or encumber, or authorize to issue or sell, pledge, dispose of or encumber, any shares of its capital stock or any other securities, or issue or sell, or authorize to issue or sell, any securities convertible into, or options, warrants, convertible securities or other rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure, other than (i) the issuance of Parent Ordinary Shares upon the exercise of Parent Options outstanding on the date hereof, in accordance with their present terms or (ii) issuances by a wholly- owned Subsidiary of the Parent of capital stock to such Subsidiary's parent, the Parent or another wholly-owned Subsidiary of the Parent;
(iii) declare, pay or set aside any dividend or other distribution (whether in cash, stock or property or any combination thereof) or payment with respect to, or split, subdivide combine, redeem or redeemreclassify, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or its other securities, other than dividends payable by a wholly-owned Subsidiary of the Parent to the Parent or another wholly-owned Subsidiary of the Parent;
(iv) other than in connection with transactions permitted by SECTION 5.2(b)(v), incur any manner that would have capital expenditures or any obligations or liabilities in respect thereof, except for those (A) contemplated by the capital expenditure budgets for the Parent and its Subsidiaries made available to the Company prior to the date hereof, (B) incurred in the ordinary course of business of the Parent and its Subsidiaries, or would (C) not otherwise described in clauses (A) and (B) which, as to this SUBSECTION (C), in the aggregate, do not exceed $1,000,000 in the aggregate;
(v) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions (A) any assets (including any equity interests) having a fair market value in excess of $1,000,000, in the aggregate, other than acquisition of inventory in the ordinary course of business consistent with past practice, or (B) all or substantially all of the equity interests of any Person or any business or division of any Person having a fair market value in excess of $1,000,000, in the aggregate;
(vi) transfer, lease, license, guarantee, sell, mortgage, pledge, renovate, rehabilitate, dispose of, encumber or subject to any Lien, any assets of the Parent or any of its Subsidiaries (except for (A) sales of assets or Liens made or granted in the ordinary course of business, (B) sales of assets which are not, individually or in the aggregate, material to the Parent and its Subsidiaries, taken as a whole, and mortgagees, pledgees and similar encumbrances in connection with the Parent's financing activities consistent with past practice and which could not reasonably be expected to haveresult in a Parent Material Adverse Effect;
(vii) adopt or enter into a material and adverse impact on the value plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Parent Common Stock, except for repurchases made in the Ordinary Course of Business with respect to of equity awards issued by Parent; (B) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock Subsidiaries (other than the Merger) or any agreement relating to a Parent Acquisition Proposal, except as provided for dividends in SECTION 7.1(b)(iv);
(viii) (A) incur any material indebtedness for borrowed money, issue any debt securities, or assume or guarantee any such indebtedness of another Person (other distributions made by than indebtedness owing to or guarantees of indebtedness owing to the Parent or any direct or indirect wholly-owned Subsidiary of Parent the Parent) or endorse or otherwise become responsible for the obligations of any Person or (B) make any loans or advances to any other Person, other than to the Parent or one of its other to any direct or indirect wholly-owned Subsidiaries; Subsidiary of the Parent, except for borrowings (1) in the ordinary course of business consistent with past practice, including without limitation borrowings under existing credit facilities or for working capital, (2) in connection with the Transactions, (3) in connection with financing relating to activities described in item 5.2(1), (2) and (4) of the Parent Disclosure Schedule, and (4) which are not otherwise described in subclauses (1), (2) or (C3) of this clause (viii) and do not exceed $10,000,000 in the aggregate;
(ix) accelerate the payment, right to payment or vesting of any bonus, severance, profit sharing, retirement, deferred compensation, stock option (including any options issued pursuant to the Parent 1999 Warrant Plan, under any award (including restricted stock, deferred stock, phantom stock, stock equivalent or stock unit) for capital stock of the Parent, or otherwise), insurance or other compensation or benefits, or amend the terms or change the period of exercisability of, purchase, repurchase, redeem or otherwise acquire, or offer permit any Subsidiary to amend the terms or change the period of exercisability of, purchase, repurchase, redeem or otherwise acquire, any capital stock or voting of its securities of, or equity interests in, Parent or any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities ofits subsidiaries, or equity interests inincluding, without limitation, Parent or any Parent SubsidiaryOrdinary Shares, or any warrantsoption, callswarrant or right, options directly or other rights indirectly, to acquire any such capital stocksecurities;
(x) settle, securities pay or interestsdischarge any claim, suit or other action brought or threatened against the Parent with respect to or arising out of a shareholder's equity interest in the Parent, or pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) over $250,000, individually or in the aggregate, other than the withholding payment, discharge or satisfaction (A) of any such claims, liabilities or obligations in the ordinary course of business and consistent with past practice or (B) of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) contained in the Parent Common Stock to satisfy Public Reports; provided, in each case, that any such settlement provides for a complete release of the exercise price and/or Tax obligations with respect to awards granted pursuant to any Parent Equity Planand its Subsidiaries and imposes no obligation on the Parent or its Subsidiaries other than the payment of money;
(cxi) issueenter into any agreement, deliverunderstanding or commitment that materially restrains, transfer limits or sellimpedes the Parent's or any of its Subsidiaries' ability to compete with or conduct any business or line of business, including, but not limited to, geographic limitations on the Parent's or authorize to issue, deliver, transfer or sell, any shares of Parent Capital Stock or securities convertible into, or subscriptions, rights, calls, conversion rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, or authorize or propose any change in its equity capitalization or capital structure; provided, however, that the Parent may issue shares of Parent Common Stock in connection with the Contemplated Transactions, in connection with the exercise of options, warrants or other rights to purchase Parent Capital Stock outstanding as of the date of this Agreement, or pursuant to the Parent PlansSubsidiaries' activities;
(dxii) enter into knowingly take any action or adopt fail to take any plan action which action or agreement of complete or partial liquidation, restructuring, recapitalization or dissolutionfailure to act would prevent, or file would be reasonably likely to prevent, the Merger from qualifying (A) for "pooling of interests" accounting treatment under Finnish GAAP or (B) as a voluntary petition in bankruptcy or commence a voluntary legal procedure for reorganization, arrangement, adjustment, release or composition of Debt in bankruptcy or other similar Laws now or hereafter in effectSection 368 Reorganization;
(exiii) handle take any action including, without limitation, the adoption of any shareholder rights plan or amendments to its payables other than articles of association or bylaws (or comparable governing documents), which would, directly or indirectly, restrict or impair the ability of the Company's shareholders to vote, or otherwise to exercise the rights and receive the benefits of a shareholder with respect to, securities of the Parent that may be acquired by the Company's shareholders in the Merger;
(xiv) materially modify, amend or terminate any material contract to which the Parent or any of its Subsidiaries is a party or waive any of their material rights or claims except, in each case, in the ordinary course of business consistent with past practice;
(fxv) Acquire another business or restructure, reorganize or completely or partially liquidateagree, in each casewriting or otherwise, to the extent that such action would, or would reasonably be expected to, (A) require the financial statements of such acquired Person or business to be incorporated within the Form S-4 under Regulation S-X of the Securities Act, or (B) otherwise prevent, materially delay or materially impair the consummation of the Merger;
(g) Take any action where such action would have an Effect described in clause (ii) of the definition of Parent Material Adverse Effect; or
(h) agree or commit to take any of the actions described in clauses foregoing actions; or
(axvi) through (g) of this Section 4.3 (Conduct of amend the Business of Parent)'s 1999 Warrant Plan or any Parent Option.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Triple S Plastics Inc)
Conduct of the Business of Parent. During Parent shall, and shall cause each of its Subsidiaries to, during the Pre-Closing Periodperiod from the date of this Agreement until the Effective Time, except (w) as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of the Company, conduct its business in the Ordinary Course of Business. Without limiting the generality of the foregoing, between the date of this Agreement and the Effective Time, except as otherwise expressly contemplated by this Agreement or as set forth in Part 4.3 Section 5.02 of the Parent Disclosure ScheduleSchedule or as required by applicable Law, (x) to Parent shall not, nor shall it permit any of its Subsidiaries to, without the extent necessary to comply with Parent’s obligations under this Agreement, (y) as necessary to ensure that prior written consent of the Parent complies with applicable Laws, or (z) with the Company’s consent Company (which consent shall not be unreasonably withheld, conditioned conditioned, or delayed): Parent shall not:):
(a) change or amend the Parent Charter Organizational Documents in a manner that would adversely affect the Company or Parent’s bylaws, or authorize or propose the sameholders of Units relative to the other holders of Parent Stock;
(b) reclassify, combine (i) split, subdivide or redeemcombine, or purchase or otherwise acquire, directly or indirectly, reclassify any of its capital stock Parent Stock in any a manner that would have (adversely affect the Company or would reasonably be expected the holders of Units relative to have) a material and adverse impact on the value other holders of the Parent Common Stock, except for repurchases made in the Ordinary Course of Business with respect to of equity awards issued by Parent; (B) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock except for dividends or other distributions made by any direct or indirect wholly-owned Subsidiary of Parent to Parent or one of its other wholly-owned Subsidiaries; or (Cii) repurchase, redeem redeem, or otherwise acquire, or offer to repurchase, redeem redeem, or otherwise acquire, any capital stock Parent Stock, or voting securities (iii) declare, set aside, or pay any dividend or distribution (whether in cash, stock, property, or otherwise) in respect of, or equity interests in, Parent or enter into any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than the withholding of Parent Common Stock to satisfy the exercise price and/or Tax obligations Contract with respect to awards granted pursuant to the voting of, any Parent Equity Planshares of its capital stock (other than dividends from its direct or indirect wholly-owned Subsidiaries);
(c) issue, deliver, transfer or sell, pledge, dispose of, or authorize to issueencumber any Parent Stock, deliver, transfer or sell, any other than (i) the issuance of shares of Parent Capital Stock or securities convertible into, or subscriptions, rights, calls, conversion rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, or authorize or propose any change in its equity capitalization or capital structure; provided, however, that the Parent may issue shares of Parent Common Stock in connection with the Contemplated Transactions, in connection with upon the exercise of options, warrants or other rights to purchase Parent Capital Stock any equity awards outstanding as of the date of this AgreementAgreement in accordance with its terms, and (ii) the issuance of shares of Parent Stock in connection with or pursuant to upon the Parent Plansexercise of any equity awards granted after the date hereof in the Ordinary Course of Business;
(d) enter into except as required by applicable Law or by any Contract in effect as of the date of this Agreement (i) increase the compensation payable or that could become payable by the Company to directors, officers, or employees, other than increases in compensation made to non-officer employees in the Ordinary Course of Business, or (ii) promote any officers or employees, except in connection with the Company’s annual or quarterly compensation review cycle or as the result of the termination or resignation of any officer or employee;
(e) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances, or capital contributions to or investments in any Person, in each case that would reasonably be expected to prevent, impede, or materially delay the consummation of the Merger or other transactions contemplated by this Agreement;
(f) (i) transfer, license, sell, lease, or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber, or otherwise subject to any Lien (other than a Permitted Lien), any assets, including the capital stock or other equity interests in any Subsidiary of the Parent; provided, that the foregoing shall not prohibit the Parent from transferring, selling, leasing, or disposing of obsolete equipment or assets being replaced, or granting of non-exclusive licenses under the Parent IP, in each case in the Ordinary Course of Business, or (ii) adopt any or effect a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization or dissolutionrecapitalization, or file a voluntary petition in bankruptcy or commence a voluntary legal procedure for other reorganization, arrangement, adjustment, release or composition of Debt in bankruptcy or other similar Laws now or hereafter in effect;
(eg) handle its payables repurchase, prepay, or incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or options, warrants, calls, or other rights to acquire any debt securities of the Parent, guarantee any debt securities of another Person, enter into any “keep well” or other Contract to maintain any financial statement condition of any other Person (other than any wholly-owned Subsidiary of it) or enter into any arrangement having the economic effect of any of the foregoing, other than in connection with the financing of ordinary course of business trade payables consistent with past practice;
(fh) Acquire another business enter into or restructureamend or modify in any material respect, reorganize or completely consent to the termination of (other than at its stated expiry date), any Parent Material Contract or partially liquidateany Lease with respect to material Real Estate or any other Contract or Lease that, if in effect as of the date hereof would constitute a Parent Material Contract or Lease with respect to material Real Estate hereunder;
(i) institute, settle, or compromise any Action involving the payment of monetary damages by the Parent of any amount exceeding $20,000 in the aggregate, other than (i) any Action brought against the Company arising out of a breach or alleged breach of this Agreement by the Company, and (ii) the settlement of claims, liabilities, or obligations reserved against on the Parent Balance Sheet; provided, that the Parent shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive impact on the Parent’s business;
(j) make any material change in any method of financial accounting principles or practices, in each casecase except for any such change required by a change in GAAP or applicable Law;
(k) (i) settle or compromise any material Tax claim, audit, or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet, (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Parent;
(l) enter into any material agreement, agreement in principle, letter of intent, memorandum of understanding, or similar Contract with respect to any joint venture, strategic partnership, or alliance;
(m) except in connection with actions permitted by Section 5.04 hereof, take any action to exempt any Person from, or make any acquisition of securities of the Parent by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Company, except for the Company, or any of their respective Subsidiaries or Affiliates, or the transactions contemplated by this Agreement;
(n) abandon, allow to lapse, sell, assign, transfer, grant any security interest in otherwise encumber or dispose of any material Parent IP, or grant any right or license to any material Parent IP other than pursuant to non-exclusive licenses entered into in the Ordinary Course of Business;
(o) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy;
(p) except to the extent expressly permitted by Section 5.04 or ARTICLE VII, take any action that such action would, is intended or that would reasonably be expected to, (A) require individually or in the financial statements of such acquired Person or business to be incorporated within the Form S-4 under Regulation S-X of the Securities Actaggregate, or (B) otherwise prevent, materially delay delay, or materially impair impede the consummation of the Merger;
(g) Take any action where such action would have an Effect described in clause (ii) of , or the definition of Parent Material Adverse Effectother transactions contemplated by this Agreement; or
(hq) agree or commit to take do any of the actions described in clauses (a) through (g) of this Section 4.3 (Conduct of the Business of Parent)foregoing.
Appears in 1 contract
Samples: Merger Agreement (FISION Corp)
Conduct of the Business of Parent. During Parent agrees that, between the Pre-Closing Perioddate of this Agreement and the Closing, except (w) as set forth in Part 4.3 Section 4.2 of the Parent Disclosure ScheduleSchedule (or in connection with the Equity Purchase Agreement, the Contribution Agreement and the Distribution Agreement, and except as necessary to perform its obligations under the Related Agreements and to effectuate the Transactions), it shall (a) conduct its business and operations only in the ordinary course of business except as necessary to perform its obligations under the Related Agreements and to effectuate the Transactions, (xb) maintain in effect all of its material Permits and other approvals of Governmental Authorities, (c) except as required pursuant to the extent necessary to comply with Parent’s obligations under this Agreement, not amend its Charter Documents or the Trust Agreement, (yd) not issue any shares of capital stock or any other equity interests (other than in connection with the Equity Financing), (e) not create any Subsidiary or acquire any capital stock, membership interest, partnership interest, joint venture interest or other equity interest in any Person, or merge or consolidate with, or purchase any assets of, any Person, (f) not incur any Indebtedness (excluding the Parent Stockholder Redemption), (g) not declare, set aside or pay any dividend or make any other distribution (whether in cash, stock or other assets) or payment with respect to any shares of capital stock or other securities (or set any record date therefor) (excluding the Parent Stockholder Redemption), (h) as necessary to ensure that the Parent complies with applicable Lawsapplicable, or (z) with the Company’s consent (which shall not be unreasonably withheld, conditioned or delayed): Parent shall not:
(a) change or amend the Parent Charter or Parent’s bylaws, or authorize or propose the same;
(b) reclassify, combine split, subdivide combine, divide, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock in any manner that would have (or would reasonably be expected to have) a material and adverse impact on the value of the Parent Common Stock, except for repurchases made in the Ordinary Course of Business with respect to of equity awards issued by Parent; (B) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock except for dividends or other distributions made by any direct or indirect wholly-owned Subsidiary securities out of Parent to Parent or one of its other wholly-owned Subsidiaries; or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than the withholding of Parent Common Stock to satisfy the exercise price and/or Tax obligations with respect to awards granted pursuant to any Parent Equity Plan;
(c) issue, deliver, transfer or sell, or authorize to issue, deliver, transfer or sell, any shares of Parent Capital Stock or securities convertible into, or subscriptions, rights, calls, conversion rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, or authorize or propose any change in its equity capitalization or capital structure; provided, however, that the Parent may issue shares of Parent Common Stock in connection with the Contemplated Transactions, in connection with the exercise of options, warrants or other rights to purchase Parent Capital Stock outstanding as of the date of this Agreement, or pursuant to the Parent Plans;
(d) enter into or adopt any plan or agreement of complete or partial liquidation, restructuring, recapitalization or dissolution, or file a voluntary petition in bankruptcy or commence a voluntary legal procedure for reorganization, arrangement, adjustment, release or composition of Debt in bankruptcy or other similar Laws now or hereafter in effect;
(e) handle its payables other than in the ordinary course of business consistent (excluding the Parent Stockholder Redemption), (i) not engage in any transactions with past practice;
Parent’s Affiliates or its or its Affiliates’ officers, directors, managers or employees outside the ordinary course of business, (fj) Acquire another business or restructure, reorganize or completely or partially liquidate, in each case, to the extent that such action wouldnot enter into, or would reasonably be expected topermit any of the assets owned or used by it to become bound by, any Contract requiring the Consent of any other party to such Contract in connection with the Transactions, (Ak) require the financial statements not change any of such acquired Person its methods of accounting or business accounting practices in any material respect, (l) not undertake any other action that would be reasonably likely to be incorporated within the Form S-4 under Regulation S-X of the Securities Act, or (B) otherwise prevent, materially delay or materially impair the adversely impede consummation of the Merger;
Transactions, (gm) Take not enter into any action where such action would have an Effect described in clause (ii) of agreement, understanding or arrangement with respect to the definition voting of Parent Material Adverse Effect; or
Common Stock or (hn) not agree or commit to take any of the actions described in clauses (a) through (g) of this Section 4.3 (Conduct of the Business of Parent)4.2.
Appears in 1 contract
Samples: Merger Agreement (Global Partner Acquisition Corp.)
Conduct of the Business of Parent. During the Pre-Closing PeriodThe Parent agrees --------------------------------- that, except (w) as set forth in Part 4.3 of the Parent Disclosure Schedule, (x) to the extent necessary to comply with Parent’s obligations under this Agreementor as permitted, (y) as necessary to ensure that the Parent complies with applicable Lawsrequired or specifically contemplated by, or (z) with otherwise described in, this Agreement or otherwise consented to or approved in writing by the Company’s consent Company (which consent or approval shall not be unreasonably withheld, conditioned withheld or delayed): Parent shall not), during the period commencing on the date hereof until the earlier of the termination of this Agreement or the Effective Time:
(a) change or amend the Parent Charter or Parent’s bylawsand each of its Subsidiaries shall conduct their respective operations in all material respects only according to their ordinary and usual course of business consistent with past practice and shall use their reasonable best efforts to preserve intact their respective business organization, or authorize or propose keep available the sameservices of their officers, employees and consultants and maintain satisfactory relationships with licensors, suppliers, distributors, clients, joint venture partners and others having significant business relationships with them;
(b) reclassifyby way of illustration and not limitation, combine neither the Parent nor any of its Subsidiaries shall:
(i) except as contemplated in the Conversion Agreement, make any change in or amendment to the Parent's articles of association, by-laws, or similar organizational documents;
(ii) except pursuant to the terms of the Conversion Agreement, issue, sell, pledge, dispose of or encumber, or authorize to issue or sell, pledge, dispose of or encumber, any shares of its capital stock or any other securities, or issue or sell, or authorize to issue or sell, any securities convertible into, or options, warrants, convertible securities or other rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure, other than (i) the issuance of Parent Ordinary Shares upon the exercise of Parent Options outstanding on the date hereof, in accordance with their present terms or (ii) issuances by a wholly-owned Subsidiary of the Parent of capital stock to such Subsidiary's parent, the Parent or another wholly-owned Subsidiary of the Parent;
(iii) declare, pay or set aside any dividend or other distribution (whether in cash, stock or property or any combination thereof) or payment with respect to, or split, subdivide combine, redeem or redeemreclassify, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or its other securities, other than dividends payable by a wholly-owned Subsidiary of the Parent to the Parent or another wholly-owned Subsidiary of the Parent;
(iv) other than in connection with transactions permitted by Section 5.2(b)(v), incur any manner that would have capital expenditures or any obligations or ----------------- liabilities in respect thereof, except for those (A) contemplated by the capital expenditure budgets for the Parent and its Subsidiaries made available to the Company prior to the date hereof, (B) incurred in the ordinary course of business of the Parent and its Subsidiaries, or would (C) not otherwise described in clauses (A) and (B) which, as to this subsection (C), in the aggregate, do not -------------- exceed $1,000,000 in the aggregate;
(v) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions (A) any assets (including any equity interests) having a fair market value in excess of $1,000,000, in the aggregate, other than acquisition of inventory in the ordinary course of business consistent with past practice, or (B) all or substantially all of the equity interests of any Person or any business or division of any Person having a fair market value in excess of $1,000,000, in the aggregate;
(vi) transfer, lease, license, guarantee, sell, mortgage, pledge, renovate, rehabilitate, dispose of, encumber or subject to any Lien, any assets of the Parent or any of its Subsidiaries (except for (A) sales of assets or Liens made or granted in the ordinary course of business, (B) sales of assets which are not, individually or in the aggregate, material to the Parent and its Subsidiaries, taken as a whole, and mortgagees, pledgees and similar encumbrances in connection with the Parent's financing activities consistent with past practice and which could not reasonably be expected to haveresult in a Parent Material Adverse Effect;
(vii) adopt or enter into a material and adverse impact on the value plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Parent Common Stock, except for repurchases made in the Ordinary Course of Business with respect to of equity awards issued by Parent; (B) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock Subsidiaries (other than the Merger) or any agreement relating to a Parent Acquisition Proposal, except as provided for dividends in Section 7.1(b)(iv); ------------------
(viii) (A) incur any material indebtedness for borrowed money, issue any debt securities, or assume or guarantee any such indebtedness of another Person (other distributions made by than indebtedness owing to or guarantees of indebtedness owing to the Parent or any direct or indirect wholly-owned Subsidiary of Parent the Parent) or endorse or otherwise become responsible for the obligations of any Person or (B) make any loans or advances to any other Person, other than to the Parent or one of its other to any direct or indirect wholly-owned Subsidiaries; Subsidiary of the Parent, except for borrowings (1) in the ordinary course of business consistent with past practice, including without limitation borrowings under existing credit facilities or for working capital, (2) in connection with the Transactions, (3) in connection with financing relating to activities described in item 5.2(1), (2) and (4) of the Parent Disclosure Schedule, and (4) which are not otherwise described in subclauses (1), (2) or (C3) of this clause (viii) and do not exceed $10,000,000 in the aggregate;
(ix) accelerate the payment, right to payment or vesting of any bonus, severance, profit sharing, retirement, deferred compensation, stock option (including any options issued pursuant to the Parent 1999 Warrant Plan, under any award (including restricted stock, deferred stock, phantom stock, stock equivalent or stock unit) for capital stock of the Parent, or otherwise), insurance or other compensation or benefits, or amend the terms or change the period of exercisability of, purchase, repurchase, redeem or otherwise acquire, or offer permit any Subsidiary to amend the terms or change the period of exercisability of, purchase, repurchase, redeem or otherwise acquire, any capital stock or voting of its securities of, or equity interests in, Parent or any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities ofits subsidiaries, or equity interests inincluding, without limitation, Parent or any Parent SubsidiaryOrdinary Shares, or any warrantsoption, callswarrant or right, options directly or other rights indirectly, to acquire any such capital stocksecurities;
(x) settle, securities pay or interestsdischarge any claim, suit or other action brought or threatened against the Parent with respect to or arising out of a shareholder's equity interest in the Parent, or pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) over $250,000, individually or in the aggregate, other than the withholding payment, discharge or satisfaction (A) of any such claims, liabilities or obligations in the ordinary course of business and consistent with past practice or (B) of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the consolidated financial statements (or the notes thereto) contained in the Parent Common Stock to satisfy Public Reports; provided, in each case, that any such settlement provides for a complete release of the exercise price and/or Tax obligations with respect to awards granted pursuant to any Parent Equity Planand its Subsidiaries and imposes no obligation on the Parent or its Subsidiaries other than the payment of money;
(cxi) issueenter into any agreement, deliverunderstanding or commitment that materially restrains, transfer limits or sellimpedes the Parent's or any of its Subsidiaries' ability to compete with or conduct any business or line of business, including, but not limited to, geographic limitations on the Parent's or authorize to issue, deliver, transfer or sell, any shares of Parent Capital Stock or securities convertible into, or subscriptions, rights, calls, conversion rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, or authorize or propose any change in its equity capitalization or capital structure; provided, however, that the Parent may issue shares of Parent Common Stock in connection with the Contemplated Transactions, in connection with the exercise of options, warrants or other rights to purchase Parent Capital Stock outstanding as of the date of this Agreement, or pursuant to the Parent PlansSubsidiaries' activities;
(dxii) enter into knowingly take any action or adopt fail to take any plan action which action or agreement of complete or partial liquidation, restructuring, recapitalization or dissolutionfailure to act would prevent, or file would be reasonably likely to prevent, the Merger from qualifying (A) for "pooling of interests" accounting treatment under Finnish GAAP or (B) as a voluntary petition in bankruptcy or commence a voluntary legal procedure for reorganization, arrangement, adjustment, release or composition of Debt in bankruptcy or other similar Laws now or hereafter in effectSection 368 Reorganization;
(exiii) handle take any action including, without limitation, the adoption of any shareholder rights plan or amendments to its payables other than articles of association or bylaws (or comparable governing documents), which would, directly or indirectly, restrict or impair the ability of the Company's shareholders to vote, or otherwise to exercise the rights and receive the benefits of a shareholder with respect to, securities of the Parent that may be acquired by the Company's shareholders in the Merger;
(xiv) materially modify, amend or terminate any material contract to which the Parent or any of its Subsidiaries is a party or waive any of their material rights or claims except, in each case, in the ordinary course of business consistent with past practice;
(fxv) Acquire another business or restructure, reorganize or completely or partially liquidateagree, in each casewriting or otherwise, to the extent that such action would, or would reasonably be expected to, (A) require the financial statements of such acquired Person or business to be incorporated within the Form S-4 under Regulation S-X of the Securities Act, or (B) otherwise prevent, materially delay or materially impair the consummation of the Merger;
(g) Take any action where such action would have an Effect described in clause (ii) of the definition of Parent Material Adverse Effect; or
(h) agree or commit to take any of the actions described in clauses foregoing actions; or
(axvi) through (g) of this Section 4.3 (Conduct of amend the Business of Parent)'s 1999 Warrant Plan or any Parent Option.
Appears in 1 contract
Samples: Merger Agreement (Eimo Oyj)
Conduct of the Business of Parent. During Parent shall, and shall cause each of its Subsidiaries to, during the Pre-Closing Periodperiod from the date of this Agreement until the Effective Time, except (w) as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of the Company, conduct its business in the Ordinary Course of Business. Without limiting the generality of the foregoing, between the date of this Agreement and the Effective Time, except as otherwise expressly contemplated by this Agreement or as set forth in Part 4.3 Section 5.02 of the Parent Disclosure ScheduleSchedule or as required by applicable Law, (x) to Parent shall not, nor shall it permit any of its Subsidiaries to, without the extent necessary to comply with Parent’s obligations under this Agreement, (y) as necessary to ensure that prior written consent of the Parent complies with applicable Laws, or (z) with the Company’s consent Company (which consent shall not be unreasonably withheld, conditioned conditioned, or delayed): Parent shall not:):
(a) change or amend the Parent Charter Organizational Documents in a manner that would adversely affect the Company or Parent’s bylaws, or authorize or propose the sameholders of Company Units relative to the other holders of Parent Stock;
(b) reclassify, combine (i) split, subdivide or redeemcombine, or purchase or otherwise acquire, directly or indirectly, reclassify any of its capital stock Parent Stock in any a manner that would have (adversely affect the Company or would reasonably be expected the holders of Company Units relative to have) a material and adverse impact on the value other holders of the Parent Common Stock, except for repurchases made in the Ordinary Course of Business with respect to of equity awards issued by Parent; (B) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock except for dividends or other distributions made by any direct or indirect wholly-owned Subsidiary of Parent to Parent or one of its other wholly-owned Subsidiaries; or (Cii) repurchase, redeem redeem, or otherwise acquire, or offer to repurchase, redeem redeem, or otherwise acquire, any capital stock Parent Stock, or voting securities (iii) declare, set aside, or pay any dividend or distribution (whether in cash, stock, property, or otherwise) in respect of, or equity interests in, Parent or enter into any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than the withholding of Parent Common Stock to satisfy the exercise price and/or Tax obligations Contract with respect to awards granted pursuant to the voting of, any Parent Equity Planshares of its capital stock (other than dividends from its direct or indirect wholly-owned Subsidiaries);
(c) issue, deliver, transfer or sell, pledge, dispose of, or authorize to issueencumber any Parent Stock, deliver, transfer or sell, any other than (i) the issuance of shares of Parent Capital Stock or securities convertible into, or subscriptions, rights, calls, conversion rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, or authorize or propose any change in its equity capitalization or capital structure; provided, however, that the Parent may issue shares of Parent Common Stock in connection with the Contemplated Transactions, in connection with upon the exercise of options, warrants or other rights to purchase Parent Capital Stock any equity awards outstanding as of the date of this AgreementAgreement in accordance with its terms, and (ii) the issuance of shares of Parent Stock in connection with or pursuant to upon the Parent Plansexercise of any equity awards granted after the date hereof in the Ordinary Course of Business;
(d) enter into except as required by applicable Law or by any Contract in effect as of the date of this Agreement (i) increase the compensation payable or that could become payable by the Company to directors, officers, or employees, other than increases in compensation made to non-officer employees in the Ordinary Course of Business, or (ii) promote any officers or employees, except in connection with the Company’s annual or quarterly compensation review cycle or as the result of the termination or resignation of any officer or employee;
(e) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances, or capital contributions to or investments in any Person, in each case that would reasonably be expected to prevent, impede, or materially delay the consummation of the Merger or other transactions contemplated by this Agreement;
(f) (i) transfer, license, sell, lease, or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber, or otherwise subject to any Lien (other than a Permitted Lien), any assets, including the capital stock or other equity interests in any Subsidiary of the Parent; provided, that the foregoing shall not prohibit the Parent from transferring, selling, leasing, or disposing of obsolete equipment or assets being replaced, or granting of non-exclusive licenses under the Parent IP, in each case in the Ordinary Course of Business, or (ii) adopt any or effect a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization or dissolutionrecapitalization, or file a voluntary petition in bankruptcy or commence a voluntary legal procedure for other reorganization, arrangement, adjustment, release or composition of Debt in bankruptcy or other similar Laws now or hereafter in effect;
(eg) handle its payables repurchase, prepay, or incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or options, warrants, calls, or other rights to acquire any debt securities of the Parent, guarantee any debt securities of another Person, enter into any “keep well” or other Contract to maintain any financial statement condition of any other Person (other than any wholly-owned Subsidiary of it) or enter into any arrangement having the economic effect of any of the foregoing, other than in connection with the financing of ordinary course of business trade payables consistent with past practice;
(fh) Acquire another business enter into or restructureamend or modify in any material respect, reorganize or completely consent to the termination of (other than at its stated expiry date), any Parent Material Contract or partially liquidateany Lease with respect to material Real Estate or any other Contract or Lease that, if in effect as of the date hereof would constitute a Parent Material Contract or Lease with respect to material Real Estate hereunder;
(i) institute, settle, or compromise any Action involving the payment of monetary damages by the Parent of any amount exceeding $20,000 in the aggregate, other than (i) any Action brought against the Company arising out of a breach or alleged breach of this Agreement by the Company, and (ii) the settlement of claims, liabilities, or obligations reserved against on the Parent Balance Sheet; provided, that the Parent shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive impact on the Parent’s business;
(j) make any material change in any method of financial accounting principles or practices, in each casecase except for any such change required by a change in GAAP or applicable Law;
(k) (i) settle or compromise any material Tax claim, audit, or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet, (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Parent;
(l) enter into any material agreement, agreement in principle, letter of intent, memorandum of understanding, or similar Contract with respect to any joint venture, strategic partnership, or alliance;
(m) except in connection with actions permitted by Section 5.04 hereof, take any action to exempt any Person from, or make any acquisition of securities of the Parent by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Company, except for the Company, or any of their respective Subsidiaries or Affiliates, or the transactions contemplated by this Agreement;
(n) abandon, allow to lapse, sell, assign, transfer, grant any security interest in otherwise encumber or dispose of any material Parent IP, or grant any right or license to any material Parent IP other than pursuant to non-exclusive licenses entered into in the Ordinary Course of Business;
(o) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy;
(p) except to the extent expressly permitted by Section 5.04 or ARTICLE VII, take any action that such action would, is intended or that would reasonably be expected to, (A) require individually or in the financial statements of such acquired Person or business to be incorporated within the Form S-4 under Regulation S-X of the Securities Actaggregate, or (B) otherwise prevent, materially delay delay, or materially impair impede the consummation of the Merger;
(g) Take any action where such action would have an Effect described in clause (ii) of , or the definition of Parent Material Adverse Effectother transactions contemplated by this Agreement; or
(hq) agree or commit to take do any of the actions described in clauses (a) through (g) of this Section 4.3 (Conduct of the Business of Parent)foregoing.
Appears in 1 contract
Samples: Merger Agreement (FISION Corp)
Conduct of the Business of Parent. During the Pre-Closing Period, except (w) as set forth in Part 4.3 of the Parent Disclosure Schedulespecifically listed on Schedule 5.1, (x) to the extent necessary to comply with Parent’s or Merger Subs’ respective obligations under this Agreement, (y) as to the extent necessary to ensure that the Parent or Merger Subs complies with applicable Laws, or (z) with the Company’s prior written consent (which shall will not be unreasonably withheld, conditioned or delayed): (i) Parent shall use commercially reasonable efforts to (A) carry on Parent’s business in the ordinary course and in accordance with all applicable Laws (provided, however, in the case of this clause (A), Parent may, in connection with COVID-19, take such actions as are reasonably necessary or advisable and, where applicable, consistent with past practice to protect the health and safety of Parent’s employees and other individuals having business dealings with Parent), (B) preserve substantially intact Parent’s present business organization, and (C) preserve the Parent’s material relationships with its employees, suppliers, distributors, licensors, licensees and others to whom the Company has contractual obligations; and (ii) Parent shall not, directly or indirectly:
(a) change or amend the Parent Charter Parent’s organizational documents or charter, or Parent’s bylaws, by-laws or authorize or propose the same;
(b) reclassifysplit, combine splitor reclassify any of its capital stock, subdivide issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or declare, set aside, or pay any dividend or make any distribution (whether in cash, in kind or otherwise) with respect to any of its capital stock, membership interest or other equity interests (as applicable) or redeem, or purchase purchase, or otherwise acquire, directly or indirectly, any of its capital stock in any manner that would have (or would reasonably be expected to have) a material and adverse impact on the value of the Parent Common Stockstock, except for repurchases made in the Ordinary Course of Business with respect to of equity awards issued by Parent; (B) declare, set aside, make or pay any dividend membership interests or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock except for dividends or other distributions made by any direct or indirect wholly-owned Subsidiary of Parent to Parent or one of its other wholly-owned Subsidiaries; or (C) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary or any securities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for capital stock or voting securities of, or equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, other than the withholding of Parent Common Stock to satisfy the exercise price and/or Tax obligations with respect to awards granted pursuant to any Parent Equity Plan(as applicable);
(c) issue, deliver, transfer or sell, or authorize to issue, deliver, transfer or sell, any shares of Parent Capital Stock its capital stock or securities convertible into, or subscriptions, rights, calls, conversion rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, or authorize or propose any change in its equity capitalization or capital structure; provided, however, that structure (except for the Parent may issue shares issuance of Parent Common Stock upon exercise of Parent stock options in connection accordance with the Contemplated Transactions, in connection with the exercise of options, warrants or other rights to purchase Parent Capital Stock outstanding Contracts evidencing such stock options as of the date of this Agreement, or pursuant to the Parent Plans);
(d) enter into or adopt any plan or agreement of complete or partial liquidation, restructuring, recapitalization or dissolution, or file a voluntary petition in bankruptcy or commence a voluntary legal procedure for reorganization, arrangement, adjustment, release or composition of Debt in bankruptcy or other similar Laws now or hereafter in effect;
(e) handle alter through liquidation, reorganization, restructuring or otherwise its payables corporate structure, including through reincorporation into a state that is not Delaware;
(f) incur any Debt for borrowed money, or guarantee any such Debt;
(g) establish or acquire any Subsidiary;
(h) acquire any (or any portion of any) business or any entity (whether by merger, share acquisition or similar transaction);
(i) (A) initiate any new line of business or (B) otherwise acquire or agree to acquire any securities or assets that are material, individually or in the aggregate, to Parent;
(j) (i) sell, assign, transfer, license, abandon or otherwise dispose of any Parent Intellectual Property, (ii) acquire, in-license or otherwise obtain any right, title or interest in or to any pending or issued Patents, inventions, patent disclosures or other material Intellectual Property from any other Person (other than, with respect to each of clauses (i) and (ii), immaterial non-exclusive licenses, material transfer agreements, or clinical trial agreements, in each case, entered into in the ordinary course of business, and, as applicable, the Parent’s form agreement(s), provided that any Intellectual Property arising from any such form agreement will be solely owned by Parent), or (iii) acquire, in-license, file any patent application for, or otherwise obtain any right, title or interest in or to any Patent, that, in each case of clauses (i), (ii) and (iii), constitute Intellectual Property that is material, individually or in the aggregate, to Parent;
(k) enter into any Contract material to Parent’s business (“Parent Material Contract”), amend or modify in any material respect any Parent Material Contract or terminate any Parent Material Contract (other than amendments, extensions, waivers, or modifications in the ordinary course of business consistent with past practice);
(fl) Acquire another business enter into any Affiliate Agreement, amend or restructuremodify in any respect any Affiliate Agreement or terminate any Affiliate Agreement, reorganize or completely or partially liquidate, in each case, to except for any termination required under the extent that such action would, or would reasonably be expected to, (A) require the financial statements terms of such acquired Person or business to be incorporated within the Form S-4 under Regulation S-X of the Securities Act, or (B) otherwise prevent, materially delay or materially impair the consummation of the Mergerthis Agreement;
(gm) Take make, revoke, or change any action where such action would have material election in respect of Taxes, change an Effect described annual Tax accounting period, adopt or change any accounting method in clause respect of Taxes, file any amendment to a Tax Return, file any Tax Return outside the ordinary course of business or otherwise in a manner inconsistent with past practice, enter into any closing agreement or other Contract with respect to Taxes with any Governmental Body, enter into any Tax sharing or similar agreement, assume any Liability for the Taxes of any other Person (ii) whether by Contract or otherwise, other than agreements entered into in the ordinary course of business the primary purpose of which is unrelated to Tax), settle or compromise any claim or assessment in respect of Taxes, consent to any extension or waiver of the definition limitation period applicable to any material claim or assessment in respect of Taxes;
(n) make, or amend, any filings with the FDA or any other Regulatory Authority performing functions similar to those performed by the FDA;
(o) (i), adopt, establish, enter into, amend or terminate any Parent Material Adverse EffectPlan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Parent Plan if it were in existence as of the date of this Agreement (except for amendments to be required by contract or to comply with applicable Law);
(p) dividends, distributions, redemptions, repurchases or any other analogous returns of investment proceeds, profits or assets (in cash or in kind) to any Person that holds an interest in Parent;
(q) waive, release, assign, compromise, commence, settle or agree to settle any Legal Proceeding; or
(hr) agree authorize, or commit or agree to take take, any of the actions described in clauses (a) through (g) of this Section 4.3 (Conduct of the Business of Parent)foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Cortexyme, Inc.)
