Conduct of the Business of the Company. From the date hereof through the Closing Date, the Company shall, and shall cause its Subsidiaries to, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) use commercially reasonable efforts (a) to conduct their respective business only in the ordinary course, consistent with past practices, and (b) to preserve substantially intact their material business relationships with clients, suppliers and other third parties. Without limiting the generality of the foregoing, from the date hereof through the Closing Date, without the written consent of Parent (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company and that it shall not, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 of the Company Disclosure Schedules: (i) materially amend, modify or supplement its Organizational Documents; (ii) amend, waive any provision of, or terminate prior to its scheduled expiration date, any Material Contract in Schedule 5.13(a)(i) of the Company Disclosure Schedules or any other Contract or any rights thereunder that involve payments or receipts in excess of $200,000; (iii) make any capital expenditures in excess of $300,000 (individually or in the aggregate); (iv) sell, lease, license or otherwise dispose of any of its assets or assets covered by any Contract except (i) pursuant to existing contracts or commitments disclosed herein, (ii) sales of Inventory in the ordinary course consistent with past practice, or (iii) not exceeding $300,000 in the aggregate; (v) pay, declare or promise to pay any dividends or other distributions with respect to its capital stock, share capital or other equity interests; (vi) effectuate any salary increase of more than 10% for any employee making an annual salary equal to or greater than $200,000 in the aggregate on an annual basis or effectuate any change to its existing bonus or profit sharing policies; (vii) obtain or incur any loans or other Indebtedness in excess of $15,000,000 in the aggregate, including in respect of (i) drawings under that certain Credit and Security Agreement, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as of December 14, 2020, as amended or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento to the Company or any of its Subsidiaries; (viii) (A) merge or consolidate with any other Person or (B) acquire any corporation, partnership, association or other business entity or organization or division thereof; (ix) make any change in its accounting principles other than in accordance with the applicable accounting policies or methods or write down the value of any Inventory or assets other than in the ordinary course of business consistent with past practice; (x) extend any loans other than travel or other expense advances to employees in the ordinary course of business or with the principal amount not exceeding $20,000; (xi) issue, redeem or repurchase any capital stock or shares, membership interests or other securities (other than those certain senior secured notes due 2026), or issue any securities exchangeable for or convertible into any share or any shares of its capital stock, other than the issuance of Company Common Shares upon the exercise or conversion of any Company Options; (xii) make or change any material Tax election or change any annual Tax accounting periods; or (xiii) undertake any legally binding obligation to do any of the actions set forth the foregoing clauses (i)-(xii).
Appears in 1 contract
Conduct of the Business of the Company. From (a) Except as expressly provided or permitted herein, set forth in Section 5.01 of the Company Disclosure Schedule or as consented to in writing by Purchasers, during the period commencing on the date hereof through of this Agreement and ending at the Subsequent Closing Dateor such earlier date as this Section 5.01 may be terminated in accordance with its terms (the “Pre-Closing Period”), the Company shall, and shall cause each of its Subsidiaries to, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) use commercially reasonable efforts (a) to conduct their respective carry on its business only in the ordinary courseOrdinary Course of Business and use reasonable best efforts to maintain and preserve its and each of its Subsidiary’s business (including its organization, consistent with past practicesassets, properties, goodwill and (binsurance coverage) to and preserve substantially intact their material its business relationships with clientscustomers, suppliers strategic partners, suppliers, distributors and other third partiesothers having business dealings with it; provided, that nothing in this sentence shall limit or require any actions that the Company Board may, in good faith, determine to be inconsistent with their duties or the Company’s obligations under applicable law. Without limiting the generality of the foregoing, from the date hereof through the Closing Date, without the written consent of Parent (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company and that it shall not, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures expressly provided herein or as set forth in Section 7.1 5.1 of the Company Disclosure Schedules:
Schedule, during the Pre-Closing Period the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Purchasers, (i) materially amenddeclare, modify set aside or supplement its Organizational Documents;
(ii) amend, waive pay any provision ofdividends on, or terminate prior to its scheduled expiration date, any Material Contract in Schedule 5.13(a)(i) of the Company Disclosure Schedules or make any other Contract distributions (whether in cash, securities or any rights thereunder that involve payments or receipts other property) in excess of $200,000;
(iii) make any capital expenditures in excess of $300,000 (individually or in the aggregate);
(iv) sell, lease, license or otherwise dispose respect of any of its assets capital stock or assets covered other equity interests (other than (1) dividends and distributions by any Contract except a direct or indirect wholly owned Subsidiary of the Company to its parent, (i2) pursuant to existing contracts or commitments disclosed hereinthe payment of the $0.12 per share dividend announced on December 7, 2007 and (3) subsequent regular quarterly cash dividends in amounts consistent with past practice on the Company Common Stock), (ii) sales split, combine or reclassify any of Inventory its capital stock or issue or authorize the issuance of any other securities or other ownership interests in the ordinary course consistent with past practicerespect of, in lieu of or in substitution for shares of its capital stock or any of its other securities or ownership interests; or (iii) not exceeding $300,000 authorize any of, or commit or agree, in writing or otherwise, to take any of, the aggregate;foregoing actions.
(vb) payFrom and after the date hereof, declare or promise to pay the Company shall not, and shall cause its Subsidiaries not to, enter into any dividends non-competition or other distributions with respect Contract that would prohibit or otherwise restrict, or purport to its capital stockprohibit or otherwise restrict, share capital or other equity interests;
(vi) effectuate any salary increase of more than 10% for any employee making an annual salary equal to or greater than $200,000 in the aggregate on an annual basis or effectuate any change to its existing bonus or profit sharing policies;
(vii) obtain or incur any loans or other Indebtedness in excess of $15,000,000 in the aggregate, including in respect of (i) drawings under that certain Credit and Security Agreement, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as of December 14, 2020, as amended or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento to the Company Purchasers or any of their Affiliates (it being understood that the Company and its Subsidiaries;
(viiiSubsidiaries are not considered to be Affiliates of Purchasers) (A) merge or consolidate with any other Person or (B) acquire any corporation, partnership, association or other business entity or organization or division thereof;
(ix) make any change in its accounting principles other than in accordance with the applicable accounting policies or methods or write down the value of any Inventory or assets other than from freely engaging anywhere in the ordinary course of business consistent with past practice;
(x) extend world in any loans other than travel or other expense advances to employees in the ordinary course of business or with the principal amount not exceeding $20,000;
(xi) issue, redeem or repurchase any capital stock or shares, membership interests or other securities (other than those certain senior secured notes due 2026), or issue any securities exchangeable for or convertible into any share or any shares of its capital stock, other than the issuance of Company Common Shares upon the exercise or conversion of any Company Options;
(xii) make or change any material Tax election or change any annual Tax accounting periods; or
(xiii) undertake any legally binding obligation to do any of the actions set forth the foregoing clauses (i)-(xii)business.
Appears in 1 contract
Conduct of the Business of the Company. From the date hereof through until the Closing DateEffective Time unless AirNet shall otherwise have consented in writing, which consent shall not be unreasonably withheld or delayed, the Company shall, and shall cause its Subsidiaries to, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) use commercially reasonable efforts (a) to conduct their respective business only in the ordinary course, course consistent with past practices, practice and (b) shall use their reasonable efforts to preserve substantially intact their material business organizations and relationships with clients, suppliers third parties and other third partiesto keep available the services of their present officers and employees. Without limiting the generality of the foregoing, from the date hereof through until the Closing DateEffective Time, except as contemplated or required by this Agreement or set forth on Schedule 5.01 of the Company Disclosure Schedule, the Company shall not, and shall cause its Subsidiaries not to, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Parent (AirNet, which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company and that it shall not, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 of the Company Disclosure Scheduleswithheld:
(ia) materially amend, modify adopt or supplement propose any change in its Organizational Documentscertificate of incorporation or bylaws or equivalent organizational documents;
(iib) amend, waive any provision of, merge or terminate prior to its scheduled expiration date, any Material Contract in Schedule 5.13(a)(i) of the Company Disclosure Schedules or consolidate with any other Contract Person or acquire the business or assets of any rights thereunder that involve payments or receipts other Person for a purchase price in excess of $200,000100,000;
(iiic) make any capital expenditures in excess of $300,000 (individually or in the aggregate);
(iv) sell, lease, license or otherwise dispose of any of its assets or assets covered by any Contract property (excluding inventory, cash and cash equivalents) in excess of $25,000 except (i) pursuant to existing contracts or commitments disclosed herein, or (ii) sales of Inventory in the ordinary course consistent with past practice in an aggregate amount not to exceed $100,000;
(d) except to the extent contemplated by this Agreement, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of their capital stock;
(e) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of their capital stock;
(f) increase the compensation payable or to become payable to the Company's or any of its Subsidiaries' executive officers, directors or employees, except for increases in the ordinary course of business consistent with past practice, or grant any severance or termination pay to, or enter into any employment or severance agreement with any director or executive officer, or establish, adopt, enter into or amend in any material respect or take action to accelerate any rights or benefits under any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, executive officer or employee;
(iiig) not exceeding pay compensation to Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxx and Xxxxxxxxx Xxxxx in excess of an annualized rate of $300,000 720,000 in the aggregate;
(vh) pay, declare create or promise to pay assume any dividends or other distributions with respect to its capital stock, share capital or other equity interests;
(vi) effectuate Lien on any salary increase of more than 10% for any employee making an annual salary equal to or greater than $200,000 in the aggregate on an annual basis or effectuate any change to its existing bonus or profit sharing policies;
(vii) obtain or incur any loans or other Indebtedness asset having a value in excess of $15,000,000 25,000 other than in the aggregate, including in respect of ordinary course consistent with past practices;
(i) drawings under that certain Credit and Security Agreementissue, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund Ideliver or sell, L.P.or authorize or propose to issue, dated as deliver or sell, any Company Securities, any Company Subsidiary Securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any Company Securities or Company Subsidiary Securities other than pursuant to the exercise of December 14, 2020, as amended a Company Stock Option;
(j) incur or restated assume any indebtedness in excess of $25,000 from time to time, and any third party for borrowed money or guarantee any such indebtedness (iiother than the endorsement of checks in the ordinary course of business);
(k) intercompany make any loans, advances or capital contributions to, or investments in, any other debt Person except for (i) loans, advances or funding from Sorrento capital contributions to or investments in Subsidiaries of the Company, (ii) loans or advances to employees in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $25,000, (iii) loans to Stockholders to the extent permitted by Section 5.05(d) or (iv) investments in securities consistent with past practices;
(l) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution of the Company or any Subsidiary of the Company, or any plan of division or share exchange involving the Company or any of its Subsidiaries;
(viiim) (A) merge change any method of accounting or consolidate with any other Person accounting principle or (B) acquire practice used by the Company or any corporationSubsidiary of the Company, partnership, association except for any such change required by reason of a change in generally accepted accounting principles or other business entity or organization or division thereofRegulation S-X;
(ixn) make terminate the Company's status as an S corporation within the meaning of Section 1361(a)(1) of the Code at any change in its accounting principles other than in accordance with time prior to the applicable accounting policies or methods or write down the value of any Inventory or assets other than in the ordinary course of business consistent with past practiceEffective Time;
(xo) extend any loans other than travel or other expense advances to employees in legally bind the ordinary course of business or with the principal amount not exceeding $20,000;
(xi) issue, redeem or repurchase any capital stock or shares, membership interests or other securities (other than those certain senior secured notes due 2026), or issue any securities exchangeable for or convertible into any share Company or any shares of its capital stock, other than the issuance of Company Common Shares upon the exercise or conversion of any Company Options;
(xii) make or change any material Tax election or change any annual Tax accounting periods; or
(xiii) undertake any legally binding obligation Subsidiary to do any of the actions set forth foregoing; or
(p) take or agree or commit to take any action to willfully make any representation and warranty of the foregoing clauses (i)-(xii)Company hereunder inaccurate in any material respect at, or as of any time prior to, the Effective Time.
Appears in 1 contract
Conduct of the Business of the Company. From Subject to applicable fiduciary duties and except for the contemplated transaction set forth on Schedule 4 hereto, each Selling Shareholder covenants and agrees to use reasonable best efforts to procure that, between the date hereof through and the Closing DateClosing, neither the Company shall, and nor any Subsidiary shall cause conduct its Subsidiaries to, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) use commercially reasonable efforts (a) to conduct their respective business only other than in the ordinary course, course and consistent with past practices, the Company’s and (b) to preserve substantially intact their material business relationships with clients, suppliers and other third partiessuch Subsidiary’s prior practice. Without limiting the generality of the foregoing, from the date hereof through the Closing Datesubject to applicable fiduciary duties, each Selling Shareholders shall use his reasonable best efforts to procure, without the prior written consent of Parent (which consent shall not be unreasonably conditionedthe Buyer, withheld, delayed or denied), that neither the Company and that it shall not, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 nor any Subsidiary will do any of the Company Disclosure Schedulesfollowing things:
(i) materially amendany declaration or payment of any dividend, modify or supplement its Organizational Documentsany authorization or payment of any distribution, on any of the share capital of the Company, or any redemption or repurchase of any Equity Securities of the Company (other than repurchases by the Company at or below the original purchase price in connection with termination of employment);
(ii) amendany material damage, waive destruction or loss, whether or not covered by insurance, to any provision of, assets or terminate prior to its scheduled expiration date, any Material Contract in Schedule 5.13(a)(i) properties of the Company Disclosure Schedules or any other Contract or any rights thereunder that involve payments or receipts in excess of $200,000its Subsidiaries;
(iii) make any capital expenditures in excess of $300,000 (individually or waiver, not in the aggregate)ordinary course of business consistent with past practice, by the Company or any of its Subsidiaries of a material right or of a material debt owed to it;
(iv) sellany making or revocation of any material Tax election, leaseany settlement or compromise of any material Tax liability, license or otherwise dispose any change (or request to any taxing authority to change) any material aspect of the method of accounting of the Company or any of its assets or assets covered by any Contract except (i) pursuant to existing contracts or commitments disclosed herein, (ii) sales of Inventory in the ordinary course consistent with past practice, or (iii) not exceeding $300,000 in the aggregateSubsidiaries for Tax purposes;
(v) payany satisfaction or discharge of any Encumbrance or payment of any Liabilities by the Company or any of its Subsidiaries, declare or promise to pay any dividends or other distributions except in the ordinary course of business consistent with respect to its capital stock, share capital or other equity interestspast practice;
(vi) effectuate any salary increase amendment to the memorandum and articles of more than 10% for any employee making an annual salary equal to or greater than $200,000 in the aggregate on an annual basis or effectuate any change to its existing bonus or profit sharing policies;
association (vii) obtain or incur any loans or other Indebtedness in excess similar governing instrument) of $15,000,000 in the aggregate, including in respect of (i) drawings under that certain Credit and Security Agreement, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as of December 14, 2020, as amended or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento to the Company or any of its Subsidiaries;
(vii) creation of any Encumbrance over any material assets of the Group;
(viii) (A) merge or consolidate with creation of any other Person or (B) acquire any corporation, partnership, association or other business entity or organization or division thereofnew Subsidiaries;
(ix) make any change in its accounting principles other than write-down or write-up (or failure to write down or write up in accordance with the applicable accounting policies or methods or write down GAAP consistent with past practice) the value of any Inventory inventories or receivables or revaluation any of the assets other than in the ordinary course of business consistent with past practice and in accordance with GAAP;
(x) any change in any method of accounting or accounting practice or policy used by the Company or any Subsidiary, other than such changes required by GAAP;
(xi) any sale, transfer, lease, sublease, license or other disposal of any material assets, personal or mixed (including leasehold interests and intangible property), other than
(1) the sale of inventories in the ordinary course of business consistent with past practice and (2) the sale of a warehouse in such manner as set forth on Schedule 4 hereto;
(xii) any issuance or sale of any capital stock, notes, bonds or other securities, or any option, warrant or other right to acquire the same, of the Company or any Subsidiary;
(xiii) any merger with, entering into a consolidation with or acquisition of an interest of 5% or more in any Person or acquisition of a substantial portion of the assets or business of any Person or any division or line of business thereof, or acquisition of any material assets other than in the ordinary course of business consistent with past practice;
(xxiv) extend any loans capital expenditure or commitment for any capital expenditure;
(xv) incurrence of any Indebtedness;
(xvi) any material amendment or early termination of any contract to which a Group Company is a party that is material to the business of the Group;
(xvii) any material transaction entered into by the Company or any of its Subsidiaries other than travel or other expense advances to employees (1) in the ordinary course of business or consistent with past practice and (2) the principal amount not exceeding $20,000;
(xi) issue, redeem or repurchase any capital stock or shares, membership interests or other securities (other than those certain senior secured notes due 2026), or issue any securities exchangeable for or convertible into any share or any shares of its capital stock, other than the issuance of Company Common Shares upon the exercise or conversion of any Company Options;
(xii) make or change any material Tax election or change any annual Tax accounting periodscontemplated transaction set forth on Schedule 4 hereto; or
(xiiixviii) undertake any legally binding obligation agreement to do any of the actions set forth the foregoing clauses (i)-(xii)foregoing.
Appears in 1 contract
Samples: Share Purchase Agreement (Sina Corp)
Conduct of the Business of the Company. (a) From the date hereof through the Closing Date, the Company shall, and shall cause its Subsidiaries to, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) use commercially reasonable efforts (a) to conduct their respective business businesses in all material respects only in the ordinary course, consistent with past practices, and (b) to preserve substantially intact their shall not enter into any material business relationships with clients, suppliers and other third parties. Without limiting the generality of the foregoing, from the date hereof through the Closing Date, transactions without the prior written consent of the Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), and shall use their commercially reasonable efforts to preserve substantially intact their respective business relationships with key employees, key suppliers and other Persons with whom they have material business dealings (it being understood that no action or failure to act permitted by Section 7.1(b) shall constitute a breach of this sentence). Notwithstanding anything to the contrary provided in this Agreement, none of the Company and its Subsidiaries shall be required to carry out any action or be prohibited from carrying out any action which would be inconsistent with any Law or which are expressly contemplated in this Agreement.
(b) From the date hereof until and including the Closing Date, without the Parent’s prior consent (which consent shall not be unreasonably withheld, delayed conditioned, or denieddelayed), the Company and that it shall not, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 of the Company Disclosure Schedulesand shall cause its Subsidiaries not to:
(i) materially amend, modify or supplement its Organizational DocumentsDocuments other than pursuant to this Agreement;
(ii) amend, waive any provision of, or terminate prior to its scheduled expiration date, or otherwise compromise in any Material way, any Contract in Schedule 5.13(a)(i) or any other right or asset of the Company Disclosure Schedules Group or any other Contract or any rights thereunder that the Purchaser Parties, which involve payments or receipts in excess of $200,0005,000,000;
(iii) make modify, amend or enter into any capital expenditures in excess contract, agreement, license or, commitment, which obligates the payment of more than $300,000 5,000,000 (individually or in the aggregate);
(iv) make any capital expenditures in excess of $5,000,000 (individually or in the aggregate);
(v) sell, lease, license or otherwise dispose of any of its the Company Group’s assets or assets covered by any Contract except (i) pursuant to existing contracts or commitments disclosed herein, (ii) sales of Inventory in the ordinary course consistent with past practice, or (iii) not exceeding $300,000 in the aggregate7,500,000;
(vvi) accept returns of products sold from Inventory except in the ordinary course, consistent with past practice;
(vii) pay, declare or promise to pay any dividends or other distributions with respect to its capital stockstock or share capital, share capital or pay, declare or promise to pay any other equity interestspayments to any stockholder (other than, in the case of any stockholder that is an employee, payments of salary, benefits, leases, commissions and similar payments in the ordinary course of business);
(viviii) effectuate authorize any salary increase of more than 1015% for any employee making an annual salary equal to or greater than $200,000 100,000 or in excess of $100,000 in the aggregate on an annual basis or effectuate any change to its existing the bonus or profit sharing policiespolicies of the Company Group other than in the ordinary course of business consistent with past practice;
(viiix) obtain or incur any loans loan or other Indebtedness in excess of $15,000,000 in the aggregate5,000,000, including in respect of (i) drawings under that certain Credit and Security Agreement, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as of December 14, 2020, as amended or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento to the Company or any Group’s existing lines of its Subsidiariescredit;
(viiix) incur any Lien on the Company Group’s assets, except for Permitted Liens or the Liens incurred in the ordinary course of business consistent with past practice;
(Axi) merge or consolidate with or acquire any other Person or (B) acquire be acquired by any corporation, partnership, association or other business entity or organization or division thereofPerson;
(ixxii) permit any material insurance policy protecting any of the Company Group’s assets with an aggregate coverage amount in excess of $5,000,000 to lapse unless a replacement policy having comparable deductions and providing coverage equal to or greater than the coverage under the lapsed policy for substantially similar premiums or less is in full force and effect;
(xiii) make any change in its accounting principles other than in accordance with the applicable accounting policies or methods or write down the value of any Inventory or assets other than in the ordinary course of business consistent with past practice;
(xxiv) change the principal place of business or jurisdiction of organization other than pursuant to the Reincorporation Merger;
(xv) extend any loans other than travel or other expense advances to employees in the ordinary course of business or with the principal amount not exceeding $20,00010,000;
(xixvi) issue, redeem or repurchase any capital stock or sharesshare, membership interests or other securities (other than those certain senior secured notes due 2026)securities, or issue any securities exchangeable for or convertible into any share or any shares of its capital stock, stock other than pursuant to the issuance of Company Common Shares upon the exercise or conversion of any Company OptionsPlan;
(xiixvii) make or change any material Tax election or change any annual Tax accounting periods; or
(xiiixviii) undertake any legally binding obligation to do any of the actions set forth the foregoing clauses (i)-(xii)foregoing.
Appears in 1 contract
Conduct of the Business of the Company. From During the period from the date hereof through of this Agreement and continuing until the Closing Date, earlier of the Company shall, and shall cause its Subsidiaries to, except as otherwise explicitly contemplated by termination of this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (which consent Effective Time, the Company shall not be unreasonably conditionedoperate the business of the Company and its subsidiaries, withheld, delayed or denied) use commercially reasonable efforts (a) to conduct their respective business only in the ordinary course, course of business consistent with past practices, and except (a) with the prior written consent of Parent (the decision with respect to which will not be unreasonably delayed) or (b) as specifically contemplated by this Agreement. The Company agrees to pay Indebtedness for borrowed money and Taxes of the Company and its subsidiaries in the ordinary course of business (subject to the right of Parent to review and approve any Tax Returns in accordance with this Agreement), to use commercially reasonable efforts to (A) pay or perform other obligations when due, and, to the extent consistent therewith, to preserve substantially intact their the present business organizations of the Company and its subsidiaries, (B) keep available the services of the present officers and Employees of the Company and its subsidiaries, (C) preserve the assets of the Company and its subsidiaries and (D) preserve the beneficial relationships of the Company and its subsidiaries with customers, suppliers, distributors, licensors, licensees, and others having business dealings with them, all with the goal of preserving unimpaired, in all material business relationships with clientsrespects, suppliers the goodwill and other third partiesongoing businesses of the Company and its subsidiaries at the Closing. Without limiting the generality of the foregoing, from except (i) as expressly contemplated by this Agreement, (ii) with the date hereof through the Closing Date, without the prior written consent of Parent (the decision with respect to which consent shall will not be unreasonably conditioneddelayed), withheld, delayed (iii) as specifically disclosed in Section 4.1 of the Disclosure Schedule or denied)(iv) as otherwise required by Law, the Company shall not from and that it shall not, except as otherwise explicitly contemplated by after the date of this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 of the Company Disclosure SchedulesAgreement:
(i) materially amend, modify or supplement its Organizational Documents;
(ii) amend, waive any provision of, or terminate prior to its scheduled expiration date, any Material Contract in Schedule 5.13(a)(i) of the Company Disclosure Schedules or any other Contract or any rights thereunder that involve payments or receipts in excess of $200,000;
(iiia) make any capital expenditure or incur any liabilities or obligations in respect thereof, other than capital expenditures (excluding, for the avoidance of doubt, capitalized software development costs and content production costs) set forth in excess the budget attached to Section 4.1 of the Disclosure Schedule, or any capital expenditures that do not exceed $300,000 (100,000 individually or in the aggregate);
(iv) sell, lease, license or otherwise dispose of any of its assets or assets covered by any Contract except (i) pursuant to existing contracts or commitments disclosed herein, (ii) sales of Inventory in the ordinary course consistent with past practice, or (iii) not exceeding $300,000 250,000 in the aggregate;
(vi) paysell or license or transfer to any Person or entity any rights to any Company IP (other than non-exclusive agreements to Company IP (not including rights in any Company Source Code that have been entered into in the ordinary course of business consistent with past practices that, declare or promise to pay (ii) enter into any dividends or other distributions agreement with respect to its capital stockthe development of any Intellectual Property Rights or Technology with a third party, share capital or other equity interests;
(viiii) effectuate any salary increase of more than 10% for any employee making an annual salary equal to or greater than $200,000 in the aggregate on an annual basis or effectuate any change to its existing bonus or profit sharing policies;
(vii) obtain or incur any loans or other Indebtedness in excess of $15,000,000 in the aggregate, including in respect of (i) drawings under that certain Credit and Security Agreement, pricing charged by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as of December 14, 2020, as amended or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento to the Company or any of its Subsidiariessubsidiaries to its customers or licensees, or the pricing set or charged by Persons who have licensed or obtained access to Company Products;
(viiic) other than to the extent necessary to reflect any actions otherwise permitted pursuant to this Section 4.1, terminate or extend, or materially amend, waive, modify, or violate the terms of, any Contract disclosed on the Disclosure Schedule (Aor agree to do so), or enter into any Contract which would constitute a Material Contract had such Contract been entered into prior to the date hereof, but solely if such Contract would reasonably be expected to result in payments to the Company in excess of $500,000 on an annual basis, or to cause the Company to incur more than $100,000 of expenditures on an annual basis;
(d) merge engage in or consolidate enter into any material transaction or commitment, or relinquish any material right, outside the ordinary course of the business of the Company and its subsidiaries consistent with past practice;
(e) initiate or settle any litigation, other than to enforce its rights under this Agreement;
(f) defer revenue or prepay expenses outside the ordinary course of business or for the purpose of increasing accounts receivable at the expense of Closing Cash;
(g) declare, set aside, or pay any dividends on or make any other Person distributions (whether in cash, stock or property) in respect of any Company Capital Stock or the capital stock of any of the Company’s subsidiaries, or split, combine or reclassify any Company Capital Stock or the capital stock of any of the Company’s subsidiaries or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any of the Company’s subsidiaries, or repurchase, redeem or otherwise acquire, directly or indirectly, any shares of Company Capital Stock or the capital stock of any of the Company’s subsidiaries (Bor options, warrants or other rights exercisable therefor) except in accordance with the agreements evidencing Company Options or restricted stock awards that are outstanding on the date hereof and disclosed in the Disclosure Schedule;
(h) issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of Company Capital Stock or the capital stock of any of the Company’s subsidiaries or any securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities, other than issuances of Company Capital Stock or the capital stock of any of the Company’s subsidiaries pursuant to exercises of Company Options in existence as of the date hereof and in accordance with their terms;
(i) cause or permit any amendments to the Charter Documents or organizational documents of any of the Company’s subsidiaries or other organizational documents of the Company (whether by merger or otherwise);
(j) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business entity or organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of the Company and its subsidiaries;
(ixk) purchase or sell (or enter into any agreement to purchase or sell) any interest in real property, grant any security interest in real property, enter into any lease, sublease, license, grant any right to occupy or use, or enter into any lease, sublease, license, or other use or occupancy agreement with respect to any real property, or alter, amend, modify or terminate any of the terms of any Lease Agreements or other Contract with respect to real property, or sell or grant any security interest in, or lease, sublease, license or grant any right to use any of the tangible assets of the Company or any of its subsidiaries material to the conduct of the business of the Company and its subsidiaries;
(l) incur or guarantee any Indebtedness for borrowed money or issue or sell any debt securities or guarantee any debt securities or other obligations of others, or create a Lien over any of its assets (other than Permitted Liens);
(m) grant any loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement;
(n) grant any severance or termination pay (in cash, equity or otherwise) to any Employee, except pursuant to the Company Employee Plans set forth in the Disclosure Schedule and provided to Parent or pursuant to standard written agreements outstanding on the date hereof and disclosed in the Disclosure Schedule, or adopt any new severance plan, or amend or modify or alter in any respect any severance plan, agreement or arrangement existing on the date hereof;
(o) hire, offer to hire or terminate (other than for cause and provided the Company notifies Parent of such termination within three (3) Business Days of the termination date) any employees of the Company or any of its subsidiaries;
(p) send any material written notices or other written communication materials (including electronic communications) to its Employees regarding this Agreement or the transactions contemplated hereby (for purposes hereof any communication distributed to more than 25 recipients is deemed material);
(q) make any representations or issue any communications to Employees that are inconsistent with this Agreement or the transactions contemplated thereby, including any representations regarding offers of employment from Parent;
(r) adopt, amend or fail to maintain any Company Employee Plan, enter into any employment contract, pay or agree to pay any special bonus or special remuneration to any director or Employee, or increase or agree to increase the salaries, wage rates, or other compensation or benefits of its Employees except payments made pursuant to this Agreement or standard written agreements outstanding on the date hereof and disclosed in the Disclosure Schedule;
(s) waive any stock repurchase rights, accelerate, amend or change the period of exercisability of any Company Options or reprice any Company Options or authorize cash payments in exchange for any Company Options;
(t) revalue any of its accounting principles assets (whether tangible or intangible), including without limitation writing off notes or accounts receivable, settle, discount or compromise any accounts receivable, or reverse any reserves other than in accordance the ordinary course of business and consistent with past practice;
(u) make or change any material Tax election, adopt or change any Tax accounting method, enter into any closing agreement, “voluntary disclosure agreement” or similar process or Tax ruling, settle or compromise any Tax claim or assessment, consent to any extension or waiver of the limitation period applicable accounting policies to any Tax claim or methods assessment, or write down file any income or other material Tax Return (including any amended Tax Return) unless, prior to filing or amending such Tax Return, Parent has the value of opportunity to review such Tax Return within a reasonable period prior to the due date for filing and Parent has consented to such filing (such consent not to be unreasonably withheld or delayed);
(v) enter into any Inventory license, distribution, reseller, OEM, joint venture or assets joint marketing or any similar arrangement or agreement (other than non-exclusive licenses of the Company Products to end-users pursuant to agreements that have been entered into in the ordinary course of business consistent with past practicepractices that do not materially differ in substance from the Standard Form Agreements);
(w) adopt or change the accounting policies or procedures of the Company or its subsidiaries, including with respect to reserves for excess or obsolete inventory, doubtful accounts or other reserves, depreciation or amortization policies or rates, billing and invoicing policies, or payment or collection policies or practices;
(x) extend any loans other than travel take, commit or other expense advances agree in writing or otherwise to employees in the ordinary course of business or with the principal amount not exceeding $20,000;
(xi) issuetake, redeem or repurchase any capital stock or shares, membership interests or other securities (other than those certain senior secured notes due 2026), or issue any securities exchangeable for or convertible into any share or any shares of its capital stock, other than the issuance of Company Common Shares upon the exercise or conversion of any Company Options;
(xii) make or change any material Tax election or change any annual Tax accounting periods; or
(xiii) undertake any legally binding obligation to do any of the actions described in Sections 4.1(a) through 4.1(w), inclusive. If the Company desires to take an action which would be prohibited pursuant to Section 4.1 hereof without the written consent of Parent, prior to taking such action the Company may request such written consent by sending an e-mail to each of the Contact Persons. Any of the parties set forth above may grant consent on behalf of Parent to the foregoing clauses taking of any action that would otherwise be prohibited pursuant to Section 4.1 by e-mail or such other notice that complies with the provisions of Section 9.1. Parent shall not unreasonably delay in providing a response to the Company’s request, and Parent’s failure to provide a response within five (i)-(xii)5) Business Days after receipt of any such request shall be deemed an acceptance of such request by Parent.
Appears in 1 contract
Samples: Merger Agreement (Linkedin Corp)
Conduct of the Business of the Company. From During the date hereof through period from the Closing Date, Agreement Date and continuing until the Company shall, and shall cause its Subsidiaries to, except as otherwise explicitly contemplated by earlier of the termination of this Agreement or and the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) use commercially reasonable efforts Closing:
(a) to the Company shall conduct their respective its business only in the usual, regular and ordinary course, consistent course and in material compliance with past practices, and Applicable Law (b) except to preserve substantially intact their material business relationships with clients, suppliers and other third parties. Without limiting the generality of the foregoing, from the date hereof through the Closing Date, without the written consent of Parent (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company and that it shall not, except as extent expressly provided otherwise explicitly contemplated by in this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 of the Company Disclosure Schedules:
(i) materially amend, modify or supplement its Organizational Documents;
(ii) amend, waive any provision of, or terminate prior to its scheduled expiration date, any Material Contract in Schedule 5.13(a)(i) of the Company Disclosure Schedules or any other Contract or any rights thereunder that involve payments or receipts in excess of $200,000;
(iii) make any capital expenditures in excess of $300,000 (individually or in the aggregateAgreement);
(ivb) sell, lease, license or otherwise dispose of any of its assets or assets covered by any Contract except the Company shall (i) pursuant pay all of its debts and Taxes when due, subject to existing contracts good faith disputes over such debts or commitments disclosed hereinTaxes, (ii) sales pay its monetary obligations when due and perform its other obligations in all material respects when due, (iii) use its commercially reasonable efforts consistent with past practice and policies to collect accounts receivable when due and not extend credit outside of Inventory in the ordinary course of business consistent with past practice, or and (iiiiv) not exceeding $300,000 in use its commercially reasonable efforts consistent with past practice and policies to preserve intact its present business organizations, keep available the aggregateservices of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it;
(vc) paythe Company shall assure that each new Material Contract it enters into after the Agreement Date will not require the procurement of any consent, declare waiver or promise to pay any dividends novation or other distributions with respect to its capital stock, share capital or other equity interests;
(vi) effectuate any salary increase of more than 10% provide for any employee making an annual salary equal to or greater than $200,000 change in the aggregate on an annual basis obligations of any party thereto in connection with, or effectuate any change terminate as a result of the consummation of, the Share Purchase, and shall give reasonable advance notice to its existing bonus or profit sharing policies;
(vii) obtain or incur any loans or other Indebtedness in excess of $15,000,000 in the aggregate, including in respect of Acquirer prior to (i) drawings under that certain Credit and Security Agreementterminating any Material Contract or taking any affirmative action to cause any right thereunder to lapse or terminate, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as in each case other than in the ordinary course of December 14, 2020, as amended business consistent with past practice or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento terminating any Material Contract with a supplier of products and/or services to the Company or taking any of its Subsidiaries;
(viii) (A) merge affirmative action to cause any right thereunder to lapse or consolidate with any other Person or (B) acquire any corporationterminate, partnership, association or other business entity or organization or division thereof;
(ix) make any change in its accounting principles other than in accordance with the applicable accounting policies or methods or write down the value of any Inventory or assets each case other than in the ordinary course of business consistent with past practice;
(xd) extend any loans other than travel or other expense advances the Company shall use its commercially reasonable efforts consistent with past practice and policies to employees maintain each of its leased premises in the ordinary course of business or accordance with the principal amount not exceeding $20,000;terms of the applicable lease; and
(xie) issue, redeem the Company shall not cause or repurchase permit any capital stock amendments to the certificate of incorporation or shares, membership interests or other securities (other than those certain senior secured notes due 2026), or issue any securities exchangeable for or convertible into any share or any shares of its capital stock, other than the issuance of Company Common Shares upon the exercise or conversion of any Company Options;
(xii) make or change any material Tax election or change any annual Tax accounting periods; or
(xiii) undertake any legally binding obligation to do any governing documents of the actions set forth the foregoing clauses (i)-(xii)Company.
Appears in 1 contract
Samples: Share Purchase Agreement (Sapiens International Corp N V)
Conduct of the Business of the Company. From (a) The Company agrees that from the date hereof through to the Closing Date, the Company shall, Effective Date it will operate its business substantially as presently operated and shall cause its Subsidiaries to, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) use commercially reasonable efforts (a) to conduct their respective business only in the ordinary course, and, consistent with past practicessuch operation, and (b) it will use its best efforts to preserve substantially intact their material business its relationships with clients, suppliers and other third partiesPersons having business dealings with it. Without limiting the generality of the foregoing, from the date hereof through the Closing Dateeach agrees that it will not, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company and that it shall not, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 of the Company Disclosure Schedulesothers:
(i) materially amendMake any change in its authorized capital stock, modify or supplement issue or sell any additional shares of, securities convertible into or exchangeable for, or options, warrants or rights to purchase, its Organizational Documentscapital stock, nor shall it purchase, redeem or otherwise acquire any of its outstanding shares of capital stock;
(ii) amendVoluntarily make any changes in the composition of its officers, waive any provision of, directors or terminate prior to its scheduled expiration date, any Material Contract in Schedule 5.13(a)(i) of the Company Disclosure Schedules or any other Contract or any rights thereunder that involve payments or receipts in excess of $200,000key management personnel;
(iii) Make any change in the compensation or title of any officer, director or key management employee or make any capital expenditures in excess of $300,000 (individually or change in the aggregate)compensation or title of any other employee;
(iv) sellEnter into any bonus, leaseincentive compensation, license stock option, deferred compensation, profit sharing, thrift, retirement, pension, group insurance or otherwise dispose of other benefit plan or any of its assets employment, retention, change in control or assets covered by any Contract except (i) pursuant to existing contracts or commitments disclosed herein, (ii) sales of Inventory in the ordinary course consistent with past practice, or (iii) not exceeding $300,000 in the aggregateconsulting agreement;
(v) payIncur any obligation or liability (whether absolute or contingent, declare excluding suits instituted against it), make any pledge, or promise to pay encumber any dividends of its assets, nor dispose of any its assets in any other manner, except in the ordinary course of its business and for adequate value, or other distributions with respect to its capital stock, share capital or other equity interestsas otherwise specifically permitted in this Agreement;
(vi) effectuate Knowingly waive any salary increase of more than 10% for any employee making an annual salary equal right to or greater than $200,000 in the aggregate on an annual basis or effectuate any change to its existing bonus or profit sharing policiessubstantial value;
(vii) obtain or incur any loans or other Indebtedness in excess of $15,000,000 in the aggregate, including in respect of (i) drawings under that certain Credit and Security Agreement, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as of December 14, 2020, as amended or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento to the Company or any of its Subsidiaries;
(viii) (A) merge or consolidate with any other Person or (B) acquire any corporation, partnership, association or other business entity or organization or division thereof;
(ix) make any change in its accounting principles other than in accordance with the applicable accounting policies or methods or write down the value of any Inventory or assets other Enter into material transactions otherwise than in the ordinary course of business consistent with past practiceits business;
(xviii) extend any loans other than travel Alter, amend or other expense advances to employees in the ordinary course repeal its Articles of business Incorporation or with the principal amount not exceeding $20,000Bylaws;
(xiix) issue, redeem Propose or repurchase take any capital stock or shares, membership interests or other securities (other than those certain senior secured notes due 2026), or issue action which would make any securities exchangeable for or convertible into any share or any shares of its capital stock, other than the issuance representations or warranties in Article V of Company Common Shares upon the exercise or conversion of any Company Options;
(xii) make or change any material Tax election or change any annual Tax accounting periods; or
(xiii) undertake any legally binding obligation to do any of the actions set forth the foregoing clauses (i)-(xii)this Agreement untrue.
Appears in 1 contract
Conduct of the Business of the Company. (a) From the date hereof through the Closing DateDate or the termination of this Agreement, as the Company shall, and shall cause its Subsidiaries tocase may be, except as otherwise explicitly permitted or contemplated by this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (by the Buyer which consent shall not be unreasonably conditionedwithheld or delayed, withheld, delayed or denied) the Shareholders will cause the Company to use commercially reasonable efforts to preserve the Business in all material respects.
(ab) From the date hereof through the Closing Date or the termination of this Agreement, as the case may be, except as otherwise permitted or contemplated by this Agreement or consented to conduct their respective business only in writing by the Buyer, which consent shall not be unreasonably withheld or delayed, the Shareholders will cause the Company to continue the operation of the Business in the ordinary course, Ordinary Course consistent with past practices, and (b) to preserve substantially intact their material business relationships with clientsuse commercially reasonable efforts to maintain the assets, suppliers properties and other third partiesrights of the Company in at least as good order and condition as exists on the date hereof, subject to ordinary wear and tear. Without limiting the generality of the foregoing, from except as otherwise permitted or contemplated by this Agreement or consented to in writing by the date hereof through the Closing DateBuyer, without the written consent of Parent (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denied)delayed, the Company and that it shall not, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 of Shareholders will not permit the Company Disclosure Schedulesto:
(i) materially amendincur, modify discharge or supplement its Organizational Documentssatisfy any obligation or liability or any Security Interest, or claim, except in the ordinary course of business or in connection with the performance of this Agreement;
(ii) amend, waive incur any provision of, debt for borrowed money or terminate prior to its scheduled expiration date, any Material Contract in Schedule 5.13(a)(i) of increase the Company Disclosure Schedules or any other Contract or any rights thereunder that involve payments or receipts in excess of $200,000;
(iii) make any capital expenditures in excess of $300,000 (individually or in the aggregate);
(iv) sell, lease, license or otherwise dispose amount of any of its assets or assets covered by any Contract except (i) pursuant to existing contracts or commitments disclosed hereindebt for borrowed money, (ii) sales of Inventory in the ordinary course consistent with past practice, or (iii) not exceeding $300,000 in the aggregate;
(v) pay, declare or promise to pay any dividends or other distributions with respect to its capital stock, share capital or other equity interests;
(vi) effectuate any salary increase of more than 10% for any employee making an annual salary equal to or greater than $200,000 in the aggregate on an annual basis or effectuate any change to its existing bonus or profit sharing policies;
(vii) obtain or incur any loans or other Indebtedness in excess of $15,000,000 in the aggregate, including in respect of (i) drawings under that certain Credit and Security Agreement, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as of December 14, 2020, as amended or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento to the Company or any of its Subsidiaries;
(viii) (A) merge or consolidate with any other Person or (B) acquire any corporation, partnership, association or other business entity or organization or division thereof;
(ix) make any change in its accounting principles other than in accordance with the applicable accounting policies or methods or write down the value of any Inventory or assets other than in the ordinary course of business consistent with past practicebusiness;
(xiii) extend increase or establish any loans reserve for taxes or other liabilities on its books or otherwise provide therefore, except for taxes or other liabilities arising in the Ordinary Course of Business since December 31, 2006; write up or down the value of inventory or determine as collectible any notes or accounts receivable that were previously considered to be uncollectible; or voluntarily make any change in any of its methods of accounting or in any of its accounting principles or practices except as required by GAAP or applicable law;
(iv) purchase, lease, sell, assign or transfer any material asset, property or business or waive or permit to lapse any material right, except in the Ordinary Course of Business; or make or authorize any capital expenditure in excess of $25,000;
(v) make any loan to either Shareholder or any relative or Affiliate of the Shareholders, or declare, set aside or pay to the Shareholder any dividend or other distribution in respect of its capital stock, transfer any asset or pay any money to the Shareholder or any relative or Affiliate of the Shareholder other than travel or (A) the payment of wages, salaries, bonuses and other expense advances to employees benefits in the ordinary course of business to the Shareholder in his capacity as an employee of the Company and (B) to pay S-corporation taxes on the income of the Company; or enter into or agree to enter into any transaction with or for the principal amount benefit of the Shareholder or any relative or Affiliate of the Shareholder other than the transactions contemplated pursuant to this Agreement. Notwithstanding the foregoing, Buyer acknowledges that the Company may pay bonuses to members of the Gantt family and declarx xxx pay dividends to the Shareholder, provided that the same do not exceeding $20,000cause the Company to fail to meet the condition set forth in Section 8.1(g) and shall be considered when computing the adjustment provided for in Section 2.3(c);
(vi) reclassify or change in any manner the outstanding shares of capital stock of the Company or issue or agree to issue, sell, transfer, pledge, encumber or deliver any stock, bond, debenture or other security of the Company or any warrant, obligation, subscription, option, convertible security or other commitments under which any additional shares of capital stock of the Company may be authorized, issued or transferred from treasury except as contemplated by this Agreement and the other Transaction Documents;
(vii) grant any increase in the compensation payable to any officer, director, consultant, employee or agent, except for increases in the compensation payable in the ordinary course of business to employees in amounts and at times consistent with past practice; enter into or amend any contract for the employment of any officer, employee or other person so that it may not be terminated upon 30 days notice or less without material liability to the Company; enter into any contract or collective bargaining agreement with any labor union; enter into or agree to enter into any bonus, pension, profit-sharing, retirement, stock purchase, stock option, deferred compensation, incentive compensation, hospitalization, insurance or similar plan, contract or understanding providing for employee benefits, other than in the Ordinary Course of Business;
(viii) enter into any contract, except in the Ordinary Course of Business, that is not terminable upon 30 days notice or less without material liability to the Company;
(ix) extend credit to any customer in excess of amounts in accordance with past practice or depart from the normal and customary trade, discount and credit policies of the Company;
(x) settle any material administrative or judicial proceedings;
(xi) issue, redeem amend the certificate of incorporation or repurchase any capital stock the bylaws of the Company in a manner that would adversely affect or shares, membership interests or other securities (other than those certain senior secured notes due 2026), or issue any securities exchangeable for or convertible into any share or any shares delay the consummation of its capital stock, other than the issuance of Company Common Shares upon the exercise or conversion of any Company Options;transactions contemplated hereby; or
(xii) make any investment in the assets or change securities of any material Tax election or change any annual Tax accounting periods; or
(xiii) undertake any legally binding obligation to do any of the actions set forth the foregoing clauses (i)-(xii)Person.
Appears in 1 contract
Conduct of the Business of the Company. (a) From the date hereof through until the Closing Dateearlier of the Effective Time and the termination of this Agreement, except as expressly contemplated by or permitted by this Agreement or the other Specified Agreements, except as set forth in Section 6.1 of the Company Disclosure Letter or as consented to in writing by Parent or except as required by applicable Law, the Company shall, and shall cause each of the Post-Restructuring Company Subsidiaries and each of the Purchased Entities to, conduct its Subsidiaries tobusiness in all material respects in the ordinary course consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its material licenses, permits, consents, franchises, approvals and authorizations, (iii) keep available the services of its officers and key employees and (iv) maintain its key relationships with its material lessors, customers, lenders, suppliers, contractors, joint venture parties, working interest parties and others having material business relationships with it and with Governmental Entities with jurisdiction over oil and gas-related matters; provided, however, that no action with respect to matters specifically addressed by any provision of Section 6.1(b) shall be deemed a breach of this Section 6.1(a) unless such action would constitute a breach of such other provision.
(b) From the date hereof until the earlier of the Effective Time and the termination of this Agreement, except as otherwise explicitly expressly contemplated or permitted by this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) use commercially reasonable efforts (a) to conduct their respective business only in the ordinary course, consistent with past practices, and (b) to preserve substantially intact their material business relationships with clients, suppliers and other third parties. Without limiting the generality of the foregoing, from the date hereof through the Closing Date, without the written consent of Parent (which consent shall not be unreasonably conditioned, withheld, delayed or denied), the Company and that it shall notSpecified Agreements, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 6.1 of the Company Disclosure SchedulesLetter or as consented to in writing by Parent (such consent not to be unreasonably withheld), or except as required by applicable Law, the Company shall not, nor shall it permit any of the Post-Restructuring Company Subsidiaries or any of the Purchased Entities to, directly or indirectly:
(i) materially amendamend or modify, modify or supplement permit the adoption of any amendment or modification to, any of its Organizational Constituent Documents;
(ii) amend(A) declare, waive authorize, set aside, make or pay any provision dividend or other distribution (whether in cash, stock or property) in respect of any of its Securities, other than the AHD Distribution and dividends or distributions paid to the Company or any wholly owned Company Subsidiaries by any wholly owned Company Subsidiaries, (B) split, combine or reclassify any of its Securities or propose the issuance of any Securities in respect of, in lieu of, or terminate prior in substitution for shares of its Securities, or otherwise amend the terms of its Securities, (C) enter into any agreement with respect to the voting of any of its scheduled expiration dateSecurities, or (D) repurchase, redeem or otherwise acquire any Material Contract of its Securities or Equity Rights (except in Schedule 5.13(a)(i) connection with the exercise of Company Stock Options or withholding of Taxes in connection with the vesting, delivery or exercise of Company Disclosure Schedules or any other Contract or any rights thereunder that involve payments or receipts in excess of $200,000Equity Awards);
(iii) make other than in connection with the AHD Sale, the AHD GP Contribution or the AHD Distribution, issue, deliver, sell, grant, transfer or subject to a Lien any capital expenditures of its Securities or Equity Rights, or grant to any Person any right to acquire any of its Securities or Equity Rights, or take any action to cause to be exercisable any otherwise unexercisable option, except pursuant to the exercise of Company Stock Options or warrants to purchase shares of Common Stock or the vesting of Company Equity Awards outstanding as of the date hereof and in excess accordance with the terms of $300,000 (individually such Equity Rights as of the date hereof or as may be granted following the date hereof in the aggregateordinary course of business consistent with past practice (including vesting terms and conditions);
(iv) sellother than (A) in connection with the Laurel Mountain Acquisition or the AHD Sale, lease(B) purchases or acquisitions of Oil and Gas Interests in the ordinary course of business consistent with past practice, license (C) purchases or otherwise acquisitions of inventory, equipment and raw materials in the ordinary course of business consistent with past practice, (D) capital expenditures in connection with the drilling of Wxxxx, and (E) any purchase or acquisition that does not qualify under clauses (A) through (D) of this Section 6.1(b)(iv), but where the total consideration for such purchase and acquisition is less than $50 million in the aggregate, acquire or purchase any properties or assets of any Person (including any acquisition or purchase of any Person or division, business or Securities Interests of any Person);
(v) other than (A) sales of inventory in the ordinary course of business consistent with past practice, (B) pursuant to any Contract of the Company or a Company Subsidiary existing as of the date hereof and disclosed on Section 6.1(b) of the Company Disclosure Letter, (C) in connection with the plugging and abandonment of Wxxxx in the ordinary course of business consistent with past practice, (D) transfers of properties to a Drilling Partnership as required by the Constituent Documents of such Drilling Partnership or as described in the offering documents for such Drilling Partnership, (E) in connection with the AHD Sale, the AHD GP Contribution and the AHD Distribution, (F) allowing any Oil and Gas Lease to lapse or expire according to the terms of such Oil and Gas Lease, and (G) any transfer, sales or disposition that does not qualify under clauses (A) through (F) of this Section 6.1(b)(v), but where the total consideration for such transfer, sale or disposition is less than $35 million in the aggregate, transfer, sell or dispose of, surrender, relinquish or dispose of any of its assets or assets covered by property, including Securities;
(vi) other than in the ordinary course of business or in connection with any Contract except New Hedge Agreement, make or assume any Derivatives, including any Derivative intended to benefit from or reduce or eliminate the risk of fluctuations in the price of Hydrocarbons or other commodities;
(ivii) pursuant enter into new Contracts to existing contracts or commitments disclosed herein, (ii) sales of Inventory sell Hydrocarbons other than in the ordinary course consistent with past practice, but in no event shall any such Contract have a duration longer than six months, a volume greater than 25 MMCF per day average over the duration of the such Contract or (iii) the pricing to sell such Hydrocarbons not exceeding $300,000 in the aggregatebe based on a published market based index;
(vA) payengage in any exploration, declare or promise to pay any dividends development drilling, well completion or other distributions with respect to its capital stockdevelopment activities, share capital or other equity interests;
(vi) effectuate any salary increase of more than 10% for any employee making an annual salary equal to or greater than $200,000 in the aggregate on an annual basis ordinary course of business consistent with past practice, (B) materially deviate from drilling the number of Wxxxx reflected in the Company’s drilling plan set forth in Section 6.1(b) of the Company Disclosure Letter or effectuate any change to its existing bonus or profit sharing policies;
(viiC) obtain create or incur any loans Production Burden on any of the Company’s, any Post-Restructuring Company Subsidiary’s or any Purchased Entity’s Oil and Gas Interests (other Indebtedness in excess of $15,000,000 in the aggregate, including in respect than any Oil and Gas Interests of (ix) drawings under a Purchased Entity that certain Credit and Security Agreementare not contemplated to be transferred, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund Idirectly or indirectly, L.P., dated as of December 14, 2020, as amended or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento to the Company or any of its Subsidiaries;
(viii) (A) merge or consolidate a Post-Restructuring Company Subsidiary in connection with any other Person the Restructuring Transactions or (By) acquire any corporationthe Company or a Post-Restructuring Company Subsidiary that are contemplated to be transferred, partnershipdirectly or indirectly, association or other business entity or organization or division thereof;
(ix) make any change to a Pipeline Subsidiary in its accounting principles other than in accordance connection with the applicable accounting policies or methods or write down the value of any Inventory or assets Restructuring Transactions), other than in the ordinary course of business consistent with past practice;
(ix) enter into commitments or agreements to license or purchase seismic data that, in the aggregate for all such commitments or agreements, will cost in excess of $30 million, other than pursuant to agreements or commitments existing on the date hereof;
(x) extend incur, assume or guarantee, prepay, or defease, any loans other than travel Indebtedness for borrowed money, except for (A) any Indebtedness among the Company and any Post-Restructuring Company Subsidiaries wholly owned by the Company, or other expense advances among Post-Restructuring Company Subsidiaries wholly owned by the Company, (B) Indebtedness incurred pursuant to employees the Company’s existing credit facility or any payment or defeasance of any Indebtedness under the Company’s existing credit facility, in each case in the ordinary course of business and consistent with past practice or in connection with the principal amount not exceeding $20,000transactions contemplated hereby and by the Restructuring Agreements, (C) transactions at the stated maturity of such Indebtedness, in accordance with the terms thereof, (D) required amortization or mandatory prepayments, in accordance with the terms of such Indebtedness and (E) Indebtedness incurred in connection with the Laurel Mountain Acquisition;
(xi) issue, redeem or repurchase make any capital stock or shares, membership interests or other securities (other than those certain senior secured notes due 2026)material investments in, or issue material capital contributions to, any securities exchangeable for other Person (excluding any investments in, or convertible into capital contributions to, any share wholly owned Post-Restructuring Company Subsidiary by the Company or any shares of its capital stockwholly owned Post-Restructuring Company Subsidiary), other than (A) the issuance of Laurel Mountain Acquisition, (B) as required pursuant to any existing joint ventures to which the Company Common Shares upon the exercise or conversion of any Company OptionsSubsidiary is a party and which joint venture is listed in Schedule 6.1(b)(xi) of the Company Disclosure Letter and (C) the AHD GP Contribution;
(xii) make assume or guarantee, endorse or otherwise become liable or responsible for the Indebtedness for borrowed money of another Person (other than the Company or any wholly owned Post-Restructuring Company Subsidiary);
(xiii) enter into any material joint venture or material statutory partnership;
(xiv) other than any transaction permitted under Section 6.1(b)(xv) or Section 6.1(b)(xvi), engage in any transactions, agreements, arrangements or understandings with any Affiliate or other Person that would be required to be disclosed by the Company under Item 404 of Regulation S-K under the Securities Act;
(xv) except as required by the Company Benefit Plans as in effect as of the date of this Agreement, or as otherwise required by applicable Law, (A) grant any new compensation or benefit, or increase the compensation or other benefits payable or provided to its current or former directors, officers, consultants or employees or trigger the forgiveness of Indebtedness owed by any such individuals other than (I) the payment of 2010 annual bonuses (provided that such bonuses may be paid at any time after December 10, 2010, and may be paid wholly in cash, in either case in the discretion of the Company) and (II) increases in base salaries, in either case in the ordinary course of business consistent with past practice, (B) adopt any new or amend any existing employee benefit plans, programs, policies, agreements or arrangements or enter into any employment, consulting, change of control, severance, termination or retention agreement or arrangement with any Person (except for employment agreements (1) terminable on less than 30 days’ notice without penalty and (2) in connection with (x) new hires (other than officers) or (y) promotions, in each case of (x) and (y) in the ordinary course of business consistent with past practice), or (C) establish, adopt, enter into or amend any collective bargaining agreement, plan, trust, fund, policy or arrangement for the benefit of any of its current or former directors, officers, consultants or employees or any of their beneficiaries (it being understood that, notwithstanding the above, the Company may (a) amend any existing Subsidiary Equity Plan and (b) adopt or enter into any new plan providing for the grant of Equity Rights of any Pipeline Subsidiary, provided that in each case of (a) and (b), (i) such Subsidiary Equity Plan or plan is not and will not be deemed to be, immediately following the Effective Time, sponsored or maintained by the Company, the Surviving Corporation, Parent or any of the Post-Restructuring Company Subsidiaries and (ii) it is expressly stated in such Subsidiary Equity Plan that none of the Company, the Surviving Corporation, Parent or any Post-Restructuring Company Subsidiary will have or could have any liability or obligation thereunder);
(xvi) hire any employees except as may be required to fill vacated and planned positions as delivered or made available to Parent prior to the date hereof or in the ordinary course of business consistent with past practice;
(xvii) [Reserved]
(xviii) compromise, settle or agree to settle any action, suit, claim, litigation, investigation or other proceeding (whether or not commenced prior to the date of this Agreement), except (A) in the case of certain actions, suits, claims, litigations, investigations or other proceedings set forth on Section 6.1(b)(xviii)(A) of the Company Disclosure Letter (“Section 6.1(b)(xviii)(A) Claims”), as set forth in Section 6.1(b)(xviii)(A) of the Company Disclosure Letter and (B) in the case of any other such actions, suits, claims, litigations, investigations or other proceedings that are not Section 6.1(b)(xviii) Claims, any such compromise, settlement or agreement to settle that does not involve a grant of injunctive relief against the Company or any of the Company Subsidiaries and any amount paid to the other party (including as reimbursement of legal fees and expenses) does not exceed the amount set forth on Section 6.1(b)(xviii)(B) of the Company Disclosure Letter;
(xix) except in the ordinary course of business consistent with past practice, (A) make, revoke or amend any material election relating to Taxes, (B) settle or compromise any material proceeding relating to Taxes, (C) enter into a written and legally binding agreement with a taxing authority relating to material Taxes, (D) file any material amended Tax Return, (E) seek or obtain any material Tax election ruling, (F) fail to file any Tax Return when due, (G) waive or extend the statute of limitations in respect of Taxes (other than extensions of time to file Tax Returns), (H) except as required by Law, change any of its methods, policies or practices of reporting income or deductions for U.S. federal income tax purposes, (I) fail to make any estimated payments of Taxes when due, or (J) change any financial accounting policies or procedures or any of its accounting methods relating to Taxes;
(xx) except in the ordinary course of business consistent with past practice (A) modify or amend in any material respect, extend or terminate (excluding terminations upon expiration of the term in accordance with their terms), or waive, release, or assign any material rights or claims under any Material Contract or (B) enter into any new agreement that would have been considered a Material Contract if it were entered into at or prior to the date hereof;
(xxi) change financial accounting policies or procedures or any of its accounting methods, except for any such changes relating to Taxes, which shall be governed by Section 6.1(b)(xix), and except for any such change required by a change in GAAP, SEC rule or policy or by applicable Law, or change its system of internal accounting controls, except for any annual Tax accounting periodssuch change required by applicable Law or by SEC rule or policy;
(xxii) terminate or cancel, or amend or modify in any material respect, any material insurance policies maintained by it covering the Company or any Post-Restructuring Company Subsidiary or their respective properties which is not replaced by a comparable amount of insurance coverage and except for any such amendment or modification made in connection with the Restructuring Transactions;
(xxiii) adopt, enter into or implement a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(xxiv) effectuate a “plant closing” or “mass layoff,” as those terms are defined in WARN; or
(xiiixxv) undertake any legally binding obligation authorize, resolve, agree or commit, to do any of the actions set forth the foregoing clauses (i)-(xii)foregoing.
Appears in 1 contract
Conduct of the Business of the Company. (a) From the date hereof through the Closing Date, the Company shall, and shall cause its Subsidiaries to, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) use commercially reasonable efforts (a) to conduct their respective business businesses in all material respects only in the ordinary course, consistent with past practices, and (b) to preserve substantially intact their shall not enter into any material business relationships with clients, suppliers and other third parties. Without limiting the generality of the foregoing, from the date hereof through the Closing Date, transactions without the prior written consent of the Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), and shall use their reasonable best efforts to preserve substantially intact their respective business relationships with key employees, key suppliers and other Persons with whom they have material business dealings (it being understood that no action or failure to act permitted by Section 7.1(b) shall constitute a breach of this sentence). Notwithstanding anything to the contrary provided in this Agreement, none of the Company and its Subsidiaries shall be required to carry out any action or be prohibited from carrying out any action which would be inconsistent with any Law or which are expressly contemplated in this Agreement.
(b) From the date hereof until and including the Closing Date, without the Parent’s prior consent (which consent shall not be unreasonably withheld, delayed conditioned, or denieddelayed), the Company and that it shall not, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 of the Company Disclosure Schedulesand shall cause its Subsidiaries not to:
(i) materially amend, modify or supplement its Organizational DocumentsDocuments other than pursuant to this Agreement;
(ii) amend, waive any provision of, or terminate prior to its scheduled expiration date, or otherwise compromise in any Material way, any Contract in Schedule 5.13(a)(i) or any other right or asset of the Company Disclosure Schedules Group or any other Contract or any rights thereunder that the Purchaser Parties, which involve payments or receipts in excess of $200,0001,500,000;
(iii) make modify, amend or enter into any capital expenditures in excess contract, agreement, license or, commitment, which obligates the payment of more than $300,000 1,500,000 (individually or in the aggregate);
(iv) make any capital expenditures in excess of $1,500,000 (individually or in the aggregate);
(v) sell, lease, license or otherwise dispose of any of its the Company Group’s assets or assets covered by any Contract except (i) pursuant to existing contracts or commitments disclosed herein, (ii) sales of Inventory in the ordinary course consistent with past practice, or (iii) not exceeding $300,000 in the aggregate2,500,000;
(vvi) accept returns of products sold from Inventory except in the ordinary course, consistent with past practice;
(vii) pay, declare or promise to pay any dividends or other distributions with respect to its capital stockstock or share capital, share capital or pay, declare or promise to pay any other equity interestspayments to any stockholder (other than, in the case of any stockholder that is an employee, payments of salary, benefits, leases, commissions and similar payments in the ordinary course of business);
(viviii) effectuate authorize any salary increase of more than 1015% for any employee making an annual salary equal to or greater than $200,000 or in excess of $200,000 in the aggregate on an annual basis or effectuate any change to its existing the bonus or profit profit-sharing policiespolicies of the Company Group other than in the ordinary course of business consistent with past practice;
(viiix) obtain or incur any loans loan or other Indebtedness in excess of $15,000,000 in the aggregate5,000,000, including in respect of (i) drawings under that certain Credit and Security Agreement, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as of December 14, 2020, as amended or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento to the Company or any Group’s existing lines of its Subsidiariescredit;
(viiix) incur any Lien on the Company Group’s assets, except for Permitted Liens or the Liens incurred in the ordinary course of business consistent with past practice;
(Axi) merge or consolidate with or acquire any other Person or (B) acquire be acquired by any corporation, partnership, association or other business entity or organization or division thereofPerson;
(ixxii) permit any material insurance policy protecting any of the Company Group’s assets with an aggregate coverage amount in excess of $1,500,000 to lapse unless a replacement policy having comparable deductions and providing coverage equal to or greater than the coverage under the lapsed policy for substantially similar premiums or less is in full force and effect;
(xiii) make any change in its accounting principles other than in accordance with the applicable accounting policies or methods or write down the value of any Inventory or assets other than in the ordinary course of business consistent with past practice;
(xxiv) change the principal place of business or jurisdiction of organization other than pursuant to the Reincorporation Merger;
(xv) extend any loans other than travel or other expense advances to employees in the ordinary course of business or with the principal amount not exceeding $20,00010,000;
(xixvi) issue, redeem or repurchase any capital stock or sharesshare, membership interests or other securities (other than those certain senior secured notes due 2026)securities, or issue any securities exchangeable for or convertible into any share or any shares of its capital stock, other than the issuance of Company Common Shares upon the exercise or conversion of any Company Options;
(xiixvii) make or change any material Tax election or change any annual Tax accounting periods; or
(xiiixviii) undertake any legally binding obligation to do any of the actions set forth the foregoing clauses (i)-(xii)foregoing.
Appears in 1 contract
Samples: Business Combination Agreement (Ace Global Business Acquisition LTD)
Conduct of the Business of the Company. From the date hereof through the Closing Date, the Company shall, and shall cause its Subsidiaries to, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements or required by Law or Pandemic Measures (including for this purposes any COVID-19 measures) or as consented to by Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) use commercially reasonable efforts (a) to conduct their respective business only in the ordinary course, consistent with past practices, and (b) to preserve substantially intact their material business relationships with clients, suppliers and other third parties. Without limiting the generality of the foregoing, except (i) as contemplated or permitted by this Agreement or any Additional Agreement, (ii) as required by applicable Law (including for this purposes any COVID-19 measures) or (iii) as consented by Parent in writing, from the date hereof Signing Date through the Closing Date, without the written consent Date or valid termination of Parent (which consent shall not be unreasonably conditioned, withheld, delayed or deniedthis Agreement pursuant to Article XI), the Company and that it shall not, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 and shall cause each of the Company Disclosure Schedulesits Subsidiaries not to:
(i) materially amend, modify or supplement its Organizational DocumentsDocuments other than pursuant to this Agreement;
(ii) modify, amend, waive any provision of, enter into or terminate prior to its scheduled expiration dateany Contract or, any Material Contract commitment, which obligates the payment of more than $500,000 (individually or in Schedule 5.13(a)(i) of the Company Disclosure Schedules or any other Contract or any rights thereunder that involve payments or receipts in excess of $200,000aggregate);
(iii) make any capital expenditures in excess of $300,000 200,000 (individually or in the aggregate);
(iv) sell, lease, license or otherwise dispose of any of its the Company’s or any Subsidiary’s assets or assets covered by any Contract except (i) pursuant to existing contracts or commitments disclosed herein, (ii) sales of Inventory assets, property or equipment in the ordinary course consistent with past practice, or and (iii) not exceeding $300,000 in the aggregate250,000;
(v) pay, declare or promise to pay any dividends or other distributions with respect to its capital stockstock or share capital, share capital or pay, declare or promise to pay any other equity interestspayments to any Shareholder (other than, in the case of any Shareholder that is also an employee, payments of salary accrued in said period at the current salary rate);
(vi) effectuate any salary increase of more than 10% for any employee making an annual salary equal to or greater than $200,000 in the aggregate on an annual basis or effectuate any change to its existing bonus or profit sharing policies;
(vii) obtain or incur any loans loan or other Indebtedness in excess of $15,000,000 250,000, except in connection with trading in the aggregateordinary course of business, including in respect of (i) drawings under that certain Credit and Security Agreement, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as the Company’s existing line of December 14, 2020, as amended credit;
(vii) suffer or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento to incur any Lien on the Company Company’s or any Subsidiary’s assets, except for Permitted Liens or the Liens incurred in the ordinary course of its Subsidiariesbusiness consistent with past practice;
(viii) suffer any damage, destruction or loss of property related to any of the Company’s or any Subsidiary’s assets, whether or not covered by insurance, the aggregate value of which, following any available insurance reimbursement, exceed $250,000;
(Aix) merge or consolidate with or acquire any other Person or (B) acquire be acquired by any corporation, partnership, association or other business entity or organization or division thereofPerson;
(ixx) make any change in its accounting principles other than in accordance with the applicable accounting policies or methods or write down the value of any Inventory or assets other than in the ordinary course of business consistent with past practice;
(xxi) extend any loans other than travel or other expense advances to employees in the ordinary course of business or with the principal amount not exceeding $20,00010,000;
(xixii) issue, redeem or repurchase any capital stock or sharesshare, membership interests or other securities (other than those certain senior secured notes due 2026)securities, or issue any securities exchangeable for or convertible into any share or any shares of its capital stock, stock other than pursuant to the issuance equity incentive plan of Company Common Shares upon the exercise or conversion of any Company OptionsCompany;
(xiixiii) make or change any material Tax election or change any annual Tax accounting periods; or
(xiiixiv) undertake any legally binding obligation to do any of the actions set forth the foregoing clauses (i)-(xii)foregoing.
Appears in 1 contract
Samples: Merger Agreement (HHG Capital Corp)
Conduct of the Business of the Company. (a) From the date hereof through the earlier of the termination of this Agreement in accordance with Section 12.1 or the Closing Date(the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) use commercially reasonable efforts (a) to conduct their respective business businesses in all material respects only in the ordinary course, consistent with past practices, and (b) to preserve substantially intact their the Company shall not, and shall cause its Subsidiaries not to, enter into any material business relationships with clients, suppliers and other third parties. Without limiting the generality of the foregoing, from the date hereof through the Closing Date, transactions without the prior written consent of the Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), and shall use their commercially reasonable efforts to preserve substantially intact their respective business relationships with key employees, key suppliers and other Persons with whom they have material business dealings (it being understood that no action or failure to act permitted by Section 7.1(b) shall constitute a breach of this sentence), except as set forth on Schedule 7.1. Notwithstanding anything to the contrary provided in this Agreement, none of the Company and its Subsidiaries shall be required to carry out any action or be prohibited from carrying out any action which would be inconsistent with any Law or which is expressly contemplated in this Agreement.
(b) During the Interim Period, except as contemplated by the terms of this Agreement (including any Transaction Financing) or as set forth on Schedule 7.1, without the Parent’s prior consent (which consent shall not be unreasonably withheld, delayed conditioned, or denieddelayed), the Company and that it shall not, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 of the Company Disclosure Schedulesand shall cause its Subsidiaries not to:
(i) materially amend, modify or supplement its Organizational DocumentsDocuments other than pursuant to this Agreement or as required by applicable Law;
(ii) amend, waive any provision of, or terminate prior to its scheduled expiration date, or otherwise compromise in any Material way, any Contract in Schedule 5.13(a)(i) or any other right or asset of the Company Disclosure Schedules Group or any other Contract or any rights thereunder that the Purchaser Parties, which involve payments or receipts in excess of $200,000100,000;
(iii) modify, amend or enter into any contract, agreement, license or, commitment, which obligates the payment of more than $150,000 per year or $300,000 in the aggregate over the life of such Contract, other than in the ordinary course of business;
(iv) make any capital expenditures in excess of $300,000 (250,000 individually for any project or set of related projects or $500,000 in the aggregate);
(ivv) sell, lease, license or otherwise dispose of any of its the Company Group’s assets or assets covered by any Contract except (i) pursuant to existing contracts Contracts or commitments disclosed herein, (ii) sales of Inventory inventory in the ordinary course consistent with past practice, or (iii) not exceeding $300,000 50,000 per asset or $150,000 in the aggregate;
(vvi) pay, declare or promise to pay any dividends or other distributions with respect to its capital stockstock or share capital, share capital or pay, declare or promise to pay any other equity interestspayments to any stockholder (other than, in the case of any stockholder that is an employee, officer director or consultant of the Company or its Subsidiaries, payments of salary, benefits, leases, commissions and similar payments in the ordinary course of business);
(vivii) effectuate authorize any salary increase (A) of more than 10% fifteen percent (15%) for any employee making an annual salary equal to or greater than $200,000 150,000 or (B) in excess of ten (10%) for all employees in the aggregate on an annual basis or effectuate any change to its existing materially increase the bonus or profit sharing policiespolicies of the Company Group other than in the ordinary course of business consistent with past practice;
(viiviii) obtain or incur any loans or other Indebtedness Indebtedness, including drawings under the Company Group’s existing lines of credit, in excess of an amount that exceeds $15,000,000 6,000,000 in the aggregate, including in respect of (i) drawings under that certain Credit and Security Agreement, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as of December 14, 2020, as amended or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento to the Company or any of its Subsidiaries;
(viiiix) incur any material Lien on the Company Group’s material assets, except for Permitted Liens or the Liens incurred in the ordinary course of business consistent with past practice;
(Ax) merge or consolidate with or acquire any other Person or (B) acquire be acquired by any corporation, partnership, association or other business entity or organization or division thereofPerson;
(ixxi) permit any material insurance policy protecting any of the Company Group’s material assets with an aggregate coverage amount in excess of $150,000 to lapse unless a replacement policy having comparable deductions and providing coverage equal to or greater than the coverage under the lapsed policy for substantially similar premiums or less is in full force and effect;
(xii) except as required by U.S. GAAP or applicable Law, make any material change in its accounting principles other than in accordance with the applicable accounting policies or methods or write down the value of any Inventory inventory or assets other than in the ordinary course of business consistent with past practice;
(xxiii) with respect to the Company only, change the principal place of business or jurisdiction of organization;
(xiv) extend any loans other than travel or other expense advances to employees in the ordinary course of business or with the principal amount not exceeding $20,00050,000, or extend any loans other than travel or other expenses to officers, directors, employees or consultants;
(xixv) issue, redeem or repurchase any share capital stock or sharesshare, membership interests or other securities (other than those certain senior secured notes due 2026)securities, or issue any securities exchangeable for or convertible into any share or any shares of its capital stock, other than the issuance of Company Common Shares upon the exercise or conversion of any Company Optionsshare capital;
(xiixvi) make or change any material Tax election or change any annual Tax accounting periodsperiods relating to material Taxes, except as required by applicable Law; settle or compromise any material claim, notice, audit report or assessment in respect of Taxes; or enter into any Tax allocation, Tax sharing, Tax indemnity or other closing agreement relating to any material Taxes (other than a contract entered into in the ordinary course of business consistent with past practices, the primary purpose of which is not related to Taxes); or surrender or forfeit any right to claim a material Tax refund; or knowingly take or fail to take any action, which action or failure to act prevents or impedes, or would reasonably be expected to prevent or impede, the Redomestication Intended Tax Treatment; or
(xiiixvii) undertake any legally binding obligation to do any of the actions set forth the foregoing clauses (i)-(xii)foregoing.
Appears in 1 contract
Samples: Business Combination Agreement (Inception Growth Acquisition LTD)
Conduct of the Business of the Company. (a) From the date hereof through the Closing DateDate or the termination of this Agreement, as the Company shall, and shall cause its Subsidiaries tocase may be, except as otherwise explicitly permitted or contemplated by this Agreement or the Additional Agreements or required by Law or Pandemic Measures or as consented to by Parent in writing (by the Buyer, which consent shall not be unreasonably conditionedwithheld or delayed, withheldthe Shareholders will cause the Company to (i) preserve in all material respects the Business of the Company, delayed or denied(ii) use its commercially reasonable best efforts to keep available to the Company the services of all current officers and key employees identified on Schedule 4.36 and (aiii) use its commercially reasonable best efforts to conduct their respective preserve in all material respects the goodwill of the suppliers, customers, employees and others currently having business only relations with the Company.
(b) From the date hereof through the Closing Date or the termination of this Agreement, as the case may be, except as otherwise permitted or contemplated by this Agreement or consented to in writing by the Buyer, which consent shall not be unreasonably withheld or delayed, the Shareholders will cause the Company to continue the operation of the Business of the Company in the ordinary course, consistent with past practicesand to maintain the assets, properties and (b) rights of the Company in at least as good order and condition as exists on the date hereof, subject to preserve substantially intact their material business relationships with clients, suppliers ordinary wear and other third partiestear. Without limiting the generality of the foregoing, from except as otherwise permitted or contemplated by this Agreement or consented to in writing by the date hereof through the Closing DateBuyer, without the written consent of Parent (which consent shall not be unreasonably conditioned, withheld, delayed withheld or denied)delayed, the Company and that it shall not, except as otherwise explicitly contemplated by this Agreement or the Additional Agreements, required by Law or Pandemic Measures or as set forth in Section 7.1 of Shareholders will not permit the Company Disclosure Schedulesto:
(i) materially amendincur, modify discharge or supplement its Organizational Documentssatisfy any obligation or liability or any Security Interest, equities or claims, except in the ordinary course of business or in connection with the performance of this Agreement;
(ii) amendincur any debt or increase the amount of any existing debt, waive any provision of, or terminate prior to its scheduled expiration date, any Material Contract other than in Schedule 5.13(a)(i) the ordinary course of the Company Disclosure Schedules or any other Contract or any rights thereunder that involve payments or receipts in excess of $200,000business;
(iii) increase or establish any reserve for taxes or other liabilities on its books or otherwise provide therefor, except for taxes or other liabilities arising in the ordinary course of business since December 31, 2004; write up or down the value of inventory or determine as collectible any notes or accounts receivable that were previously considered to be uncollectible; or voluntarily make any capital expenditures change in excess any of $300,000 (individually its methods of accounting or in the aggregate)any of its accounting principles or practices except as required by GAAP or applicable law;
(iv) sellpurchase, lease, license sell, assign or otherwise dispose of transfer any of its assets material asset, property or assets covered by business or waive or permit to lapse any Contract material right, except (i) pursuant to existing contracts or commitments disclosed herein, (ii) sales of Inventory in the ordinary course consistent with past practice, of business; or (iii) not exceeding make or authorize any capital expenditure in excess of $300,000 100,000 in the aggregate;
(v) paymake any loan to any Shareholder or any relative or Affiliate of any Shareholder, declare or promise declare, set aside or pay to pay any dividends Shareholder any dividend or other distributions with distribution in respect to of its capital stock, share capital transfer any asset or pay any money to any Shareholder or any relative or Affiliate of any Shareholder other equity intereststhan the payment of wages, salaries, bonuses and other benefits in the ordinary course of business to Shareholders who are also employees of the Company; or enter into or agree to enter into any transaction with or for the benefit of any Shareholder or any relative or Affiliate of any Shareholder other than the transactions contemplated pursuant to this Agreement;
(vi) effectuate reclassify or change in any salary increase manner the outstanding shares of more than 10% for capital stock of the Company or issue or agree to issue, sell, transfer, pledge, encumber or deliver any employee making an annual salary equal to stock, bond, debenture or greater than $200,000 in other security of the aggregate on an annual basis Company or effectuate any change to its existing bonus warrant, obligation, subscription, option, convertible security or profit sharing policiesother commitments under which any additional shares of capital stock of the Company may be authorized, issued or transferred from treasury except as contemplated by this Agreement and the other Transaction Documents;
(vii) obtain except as set forth in Schedule 6.03(b)(vii), grant any increase in the compensation payable to any officer, director, consultant, employee or incur agent, except for increases in the compensation payable in the ordinary course of business to employees in amounts and at times consistent with past practice; fail to pay or accrue for compensation payable to officers, directors, consultants, employees or agents in compliance with existing agreements or arrangements or consistent with prior periods; enter into or amend any loans contract for the employment of any officer, employee or other Indebtedness in excess of $15,000,000 in the aggregate, including in respect of (i) drawings under person that certain Credit and Security Agreement, by and between Scilex Pharmaceuticals Inc. and CNH Finance Fund I, L.P., dated as of December 14, 2020, as amended is not terminable upon 30 days notice or restated from time to time, and (ii) intercompany loans, advances or other debt or funding from Sorrento less without material liability to the Company Company; enter into any contract or any of its Subsidiaries;
(viii) (A) merge or consolidate collective bargaining agreement with any other Person labor union; enter into or (B) acquire agree to enter into any corporationbonus, partnershippension, association profit-sharing, retirement, stock purchase, stock option, deferred compensation, incentive compensation, hospitalization, insurance or other business entity similar plan, contract or organization or division thereof;
(ix) make any change in its accounting principles other than in accordance with the applicable accounting policies or methods or write down the value of any Inventory or assets understanding providing for employee benefits, other than in the ordinary course of business consistent with past practice;
(xviii) extend enter into any loans other than travel or other expense advances to employees contract, except in the ordinary course of business consistent with past practice, that is not terminable upon 30 days notice or less without material liability to the Company; enter into any contract, except in the ordinary course of business consistent with past practice, continuing for a period of more than three months from its date that is not terminable upon 30 days notice or less without material liability to the principal amount not exceeding $20,000Company;
(ix) enter into any agreement or instrument, except in the ordinary course of business consistent with past practice, relating to the borrowing or lending of money or extension of credit or guarantee or indemnify any person or entity with respect to any obligation for borrowed money or otherwise or make or permit to be made any amendment, modification, cancellation or termination of any material contract, agreement, lease, license, finance agreement or written evidence of indebtedness, except as contemplated by this Agreement;
(x) extend credit to any customer in excess of amounts in accordance with past practice or depart from the normal and customary trade, discount and credit policies of the Company;
(xi) issue, redeem settle any administrative or repurchase any capital stock or shares, membership interests or other securities (other than those certain senior secured notes due 2026), or issue any securities exchangeable for or convertible into any share or any shares of its capital stock, other than the issuance of Company Common Shares upon the exercise or conversion of any Company Optionsjudicial proceedings;
(xii) make amend the certificate of incorporation or change any material Tax election the bylaws of the Company in a manner that would adversely affect or change any annual Tax accounting periodsdelay the consummation of the transactions contemplated hereby; or
(xiii) undertake any legally binding obligation to do any of the actions set forth the foregoing clauses (i)-(xii).
Appears in 1 contract
