Conduct of the Business of the Purchaser. The Purchaser covenants and agrees that, until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, unless the Company otherwise consents in writing (to the extent that such consent is permitted by applicable Law), or as is otherwise expressly permitted or specifically contemplated by this Agreement or the Plan of Arrangement or as is otherwise required by applicable Law: 1. the business of the Purchaser will be conducted, and the Purchaser will continue to operate its business substantially in the Ordinary Course, provided that, for greater certainty, this should in no way preclude the Purchaser from taking any action in respect of any financing transaction (debt, equity or otherwise) or any other transaction approved by its board of directors; 2. the Purchaser will use commercially reasonable efforts to maintain and preserve intact its business organizations, assets, properties, rights, goodwill and business relationships and keep available the services of its respective officers and employees as a group, in all material respects; and 3. the Purchaser will not, directly or indirectly, without the consent of the Company (such consent not to be unreasonably withheld or delayed): a. alter or amend its articles, charter, by-laws or other Organizational Documents or the terms of the Purchaser Shares; b. adopt a plan of liquidation or resolution providing for the liquidation or dissolution of the Purchaser; c. make any material changes to any of its accounting policies, principles, methods, practices or procedures (including by adopting any material new accounting policies, principles, methods, practices or procedures), except as required by applicable Laws or under U.S. GAAP; d. reduce the stated capital of any class or series of the Purchaser Shares; or e. authorize any of the foregoing, or enter into or modify any Contract to do any of the foregoing. The Parties acknowledge and agree that (i) nothing contained herein shall give the Company the right to control, directly or indirectly, the operations or the business of the Purchaser at any time prior to the Effective Time, (ii) prior to the Effective Time, the Purchaser shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ business and operations, and (iii) notwithstanding anything to the contrary set forth herein, no consent of the Company will be required with respect to any matter set forth in this Agreement to the extent the requirement of such consent would violate any Antitrust Law or any other applicable Law.
Appears in 1 contract
Conduct of the Business of the Purchaser. The Purchaser covenants and agrees that, until the earlier of the Effective Time and the time time that this Agreement is terminated in accordance with its terms, unless the Company otherwise otherwise consents in writing (to the extent that such consent is permitted by applicable Law), or or as is otherwise expressly expressly permitted or specifically contemplated contemplated by this Agreement or the Plan of Arrangement or as is otherwise required by applicable Law:applicable Law:
(1. ) the business of the Purchaser will be conducted, and the Purchaser will continue to operate operate its business substantially in the Ordinary Course, provided that, for greater certainty, this should in no way preclude the Purchaser from taking any action in respect of any financing transaction (debt, equity or otherwise) or any other other transaction approved by its board of directors;
(2. ) the Purchaser will use commercially reasonable efforts to maintain maintain and preserve intact its business organizations, assets, propertiesproperties, rights, goodwill and business relationships and keep available the services of its respective officers and employees as a group, in all material respects; respects; and
(3. ) the Purchaser will not, directly or indirectlyindirectly, without the consent of the Company (such consent not to be unreasonably withheld or delayed):delayed):
a. (a) alter or amend its articles, charter, by-laws or other Organizational Documents or the terms of the Purchaser Shares;Shares;
b. (b) adopt a plan of liquidation or resolution providing for the liquidation or dissolution of of the Purchaser;Purchaser;
c. (c) make any material changes to any of its accounting policies, principles, methods, practices practices or procedures (including by adopting any material new accounting policies, principlesprinciples, methods, practices or procedures), except as required by applicable Laws or under under U.S. GAAP;GAAP;
d. (d) reduce the stated capital of any class or series of the Purchaser Shares; oror
e. (e) authorize any of the foregoing, or enter into or modify any Contract to do any of the the foregoing. The Parties acknowledge and agree that (i) nothing contained herein shall give the Company the right to control, directly or indirectly, the operations or the business of the Purchaser at any time prior to the Effective Time, (ii) prior to the Effective Time, the Purchaser shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ business and operations, and (iii) notwithstanding anything to the contrary set forth herein, no consent of the Company will be required with respect to any matter set forth in this Agreement to the extent the requirement of such consent would violate any Antitrust Law or any other applicable Law.
Appears in 1 contract
Samples: Arrangement Agreement (HEXO Corp.)
Conduct of the Business of the Purchaser. (a) During the period from the date hereof to the Closing Date, the Purchaser shall and shall cause its subsidiaries, except as otherwise expressly provided in this Agreement, to operate only in the ordinary course of business consistent with past practice. The Purchaser covenants and agrees that, until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, unless the Company otherwise consents in writing (to the extent that such consent is permitted by applicable Law), or as is otherwise expressly permitted or specifically contemplated by this Agreement or the Plan of Arrangement or as is otherwise required by applicable Law:
1. the business of the Purchaser will be conductedshall, and the Purchaser will continue to operate shall cause its business substantially in the Ordinary Coursesubsidiaries to, provided that, for greater certainty, this should in no way preclude the Purchaser from taking any action in respect of any financing transaction (debt, equity or otherwise) or any other transaction approved by its board of directors;
2. the Purchaser will use commercially all reasonable efforts to maintain and preserve intact its business organizationsand their present organization, assets, properties, rights, goodwill and business relationships and keep available the services of its respective and their present officers and employees and preserve its and their relationships with customers, suppliers, and others having significant business dealings with it or them.
(b) Without limiting the generality of the foregoing, and except as a group, set forth in all material respects; and
3. Section 4.2 of the Purchaser will notDisclosure Schedule or as otherwise ex pressly provided in this Agreement, directly or indirectlyfrom the date of this Agreement to the Closing Date, the Purchaser shall not and shall cause each of its subsidiaries not to, without the written consent of the Company Seller:
(such consent not to be unreasonably withheld or delayed):
a. alter or i) amend its articles, charter, certificate of incorporation or by-laws (or other Organizational Documents similar organizational documents) or alter through merger, liquidation, reorganization, restructuring or in any other fashion, the corporate structure or ownership of the Purchaser or any of its subsidiaries;
(ii) issue, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of capital stock of the Purchaser or any subsidiary of the Purchaser, or any securities convertible into, or exchangeable for, any such shares or amend the terms of any such securities or agreements outstanding on the Purchaser Shares;date hereof;
b. adopt a plan (iii) (A) declare, set aside, make or pay any dividend or other distribution in respect of liquidation its capital stock, or resolution providing for the liquidation (B) redeem, repurchase or dissolution of the Purchaser;
c. make any material changes to otherwise acquire any of its accounting policiessecurities or split, principlescombine or reclassify any shares of its capital stock;
(iv) (A) transfer, methodssell, practices lease, license or procedures (including by adopting dispose of any material new accounting policiesassets or rights, principlesunless in the ordinary course of business consistent with past practice; or (B) acquire or agree to acquire, methodsby merging or consolidating with, by purchasing an equity interest in or a portion of the assets of or by any other manner any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets of any other person (other than the purchase of assets in the ordinary course of business and consistent with past practices); provided that the Purchaser may take any action set forth in this clause (B) if and to the extent that such action would not give the financing sources under the Purchaser's financing commitments referenced in Section 3.5 hereof the right not to fund such commitments.
(v) other than in the ordinary course of business and other than transactions with wholly-owned subsidiaries of the Pur chaser, (A) incur, assume, discharge, cancel or prepay any material indebtedness or other obligation or issue or sell any debt securities or rights to acquire any debt securities, (B) assume, guarantee, endorse or otherwise become liable (whether directly, contingently or other wise) for the obligations of any other person, (C) make any loans, advances or capital contributions to, or investments in, any other person; (D) change the Purchaser's practices with respect to the timing of payments or procedurescollections; (E) pledge or otherwise encumber shares of capital stock of the Purchaser and its subsidiaries; or (F) mortgage or pledge any of its assets or permit to exist any Lien (other than (i) mechanics', carriers', workmen's, repairmen's or other like Liens arising or incurred in the ordinary course of business, (ii) Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business and (iii) Liens for Taxes that are (A) not due and payable or (B) being contested in good faith ("Purchaser Permitted Liens")) thereupon;
(vi) enter into, adopt, amend or terminate any em ployee benefit plan, or increase in any material respect the compensa tion or fringe benefits of any officer or employee of the Purchaser or pay any benefit not required by any existing plan, except in the ordi nary course of business or as required by applicable Laws law or under U.S. GAAP;existing contractual arrangements;
d. reduce the stated capital of (vii) settle or compromise any class or series material litigation of the Purchaser Sharesor any of its subsidiaries (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims, liabilities or obligations not required to be paid, individually in an amount in excess of $1 million per year;
(viii) change or agree to change any accounting method or policy other than as required by GAAP or by Law;
(ix) change, or agree to change, any business policies which relate to advertising, pricing, personnel, labor relations, sales, returns or product acquisitions, in each case in a manner which would have a Purchaser Material Adverse Effect;
(x) settle or compromise any material Tax liability; oror
e. authorize (xi) take, or agree in writing or otherwise to take, any of the foregoing, or enter into or modify any Contract to do any of the foregoing. The Parties acknowledge and agree that (i) nothing contained herein shall give the Company the right to control, directly or indirectly, the operations or the business of the Purchaser at any time prior to the Effective Time, (ii) prior to the Effective Time, the Purchaser shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ business and operations, and (iii) notwithstanding anything to the contrary set forth herein, no consent of the Company will be required with respect to any matter set forth in this Agreement to the extent the requirement of such consent would violate any Antitrust Law or any other applicable Lawforegoing actions.
Appears in 1 contract
Conduct of the Business of the Purchaser. (a) During the period from the date hereof to the Closing Date, the Purchaser shall and shall cause its subsidiaries, except as otherwise expressly provided in this Agreement, to operate only in the ordinary course of business consistent with past practice. The Purchaser covenants and agrees that, until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, unless the Company otherwise consents in writing (to the extent that such consent is permitted by applicable Law), or as is otherwise expressly permitted or specifically contemplated by this Agreement or the Plan of Arrangement or as is otherwise required by applicable Law:
1. the business of the Purchaser will be conductedshall, and the Purchaser will continue to operate shall cause its business substantially in the Ordinary Coursesubsidiaries to, provided that, for greater certainty, this should in no way preclude the Purchaser from taking any action in respect of any financing transaction (debt, equity or otherwise) or any other transaction approved by its board of directors;
2. the Purchaser will use commercially all reasonable efforts to maintain and preserve intact its business organizationsand their present organization, assets, properties, rights, goodwill and business relationships and keep available the services of its respective and their present officers and employees and preserve its and their relationships with customers, suppliers, and others having significant business dealings with it or them.
(b) Without limiting the generality of the foregoing, and except as a group, set forth in all material respects; and
3. Section 4.2 of the Purchaser will notDisclosure Schedule or as otherwise expressly provided in this Agreement, directly or indirectlyfrom the date of this Agreement to the Closing Date, the Purchaser shall not and shall cause each of its subsidiaries not to, without the written consent of the Company Seller:
(such consent not to be unreasonably withheld or delayed):
a. alter or i) amend its articles, charter, certificate of incorporation or by-laws (or other Organizational Documents similar organizational documents) or alter through merger, liquidation, reorganization, restructuring or in any other fashion, the corporate structure or ownership of the Purchaser or any of its subsidiaries;
(ii) issue, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of capital stock of the Purchaser or any subsidiary of the Purchaser, or any securities convertible into, or exchangeable for, any such shares or amend the terms of any such securities or agreements outstanding on the Purchaser Shares;date hereof;
b. adopt a plan (iii) (A) declare, set aside, make or pay any dividend or other distribution in respect of liquidation its capital stock, or resolution providing for the liquidation (B) redeem, repurchase or dissolution of the Purchaser;
c. make any material changes to otherwise acquire any of its accounting policiessecurities or split, principlescombine or reclassify any shares of its capital stock;
(iv) (A) transfer, methodssell, practices lease, license or procedures (including by adopting dispose of any material new accounting policiesassets or rights, principlesunless in the ordinary course of business consistent with past practice; or (B) acquire or agree to acquire, methodsby merging or consolidating with, by purchasing an equity interest in or a portion of the assets of or by any other manner any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets of any other person (other than the purchase of assets in the ordinary course of business and consistent with past practices); provided that the Purchaser may take any action set forth in this clause (B) if and to the extent that such action would not give the financing sources under the Purchaser's financing commitments referenced in Section 3.5 hereof the right not to fund such commitments.
(v) other than in the ordinary course of business and other than transactions with wholly-owned subsidiaries of the Pur- chaser, (A) incur, assume, discharge, cancel or prepay any material indebtedness or other obligation or issue or sell any debt securities or rights to acquire any debt securities, (B) assume, guarantee, endorse or otherwise become liable (whether directly, contingently or other wise) for the obligations of any other person, (C) make any loans, advances or capital contributions to, or investments in, any other person; (D) change the Purchaser's practices with respect to the timing of payments or procedurescollections; (E) pledge or otherwise encumber shares of capital stock of the Purchaser and its subsidiaries; or (F) mortgage or pledge any of its assets or permit to exist any Lien (other than (i) mechanics', carriers', workmen's, repairmen's or other like Liens arising or incurred in the ordinary course of business, (ii) Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business and (iii) Liens for Taxes that are (A) not due and payable or (B) being contested in good faith ("Purchaser Permitted Liens")) thereupon;
(vi) enter into, adopt, amend or terminate any employee benefit plan, or increase in any material respect the compensation or fringe benefits of any officer or employee of the Purchaser or pay any benefit not required by any existing plan, except in the ordi- nary course of business or as required by applicable Laws law or under U.S. GAAP;existing contractual arrangements;
d. reduce the stated capital of (vii) settle or compromise any class or series material litigation of the Purchaser Sharesor any of its subsidiaries (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims, liabilities or obligations not required to be paid, individually in an amount in excess of $1 million per year;
(viii) change or agree to change any accounting method or policy other than as required by GAAP or by Law;
(ix) change, or agree to change, any business policies which relate to advertising, pricing, personnel, labor relations, sales, returns or product acquisitions, in each case in a manner which would have a Purchaser Material Adverse Effect;
(x) settle or compromise any material Tax liability; oror
e. authorize (xi) take, or agree in writing or otherwise to take, any of the foregoing, or enter into or modify any Contract to do any of the foregoing. The Parties acknowledge and agree that (i) nothing contained herein shall give the Company the right to control, directly or indirectly, the operations or the business of the Purchaser at any time prior to the Effective Time, (ii) prior to the Effective Time, the Purchaser shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ business and operations, and (iii) notwithstanding anything to the contrary set forth herein, no consent of the Company will be required with respect to any matter set forth in this Agreement to the extent the requirement of such consent would violate any Antitrust Law or any other applicable Lawforegoing actions.
Appears in 1 contract
