Conduct of the Company. From the date of this Agreement until the Closing or the earlier termination of this Agreement in accordance with Article 8 (the “Pre-Closing Period”), except as (i) expressly required or expressly contemplated by this Agreement, (ii) set forth in Section 5.01 of the Company Letter, (iii) required by applicable Law or (iv) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, (A) conduct its business in all material respects in the ordinary course of business consistent with past practice, (B) use its reasonable best efforts to preserve intact in all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of the Company or any of its Subsidiaries shall be required to (or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationships. In addition to and without limiting the generality of the foregoing, during the Pre-Closing Period, except as (w) expressly required or expressly contemplated by this Agreement, (x) set forth in Section 5.01 of the Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries not to:

Appears in 3 contracts

Samples: Purchase Agreement (Digital Realty Trust, Inc.), Purchase Agreement (Digital Realty Trust, Inc.), Purchase Agreement (InterXion Holding N.V.)

Conduct of the Company. From the date of this Agreement until the Closing or the earlier valid termination of this Agreement in accordance with Article 8 (the “Pre-Closing Period”), except as (i) expressly required or expressly contemplated by this Agreement, (ii) set forth in on Section 5.01 of the Company Letter, (iii) required by applicable Law or (iv) consented to in ~~advance in~~ writing by ~~Parent or Buyer~~ Buyer, in advance (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, (A) conduct its business in all material respects in the ordinary course of business consistent with past ~~practice,~~ practice and (B) use its commercially reasonable ~~best~~ efforts to preserve intact ~~in all material respects~~ its business organization and material business relationships with manufacturers, suppliers, vendors, distributors, Governmental Authorities, ~~Customers~~ customers, licensors, licensees and other ~~Persons~~ Third Parties with which ~~the Company~~ it has material business relationships and keep available the services of its present officers and ~~key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter~~employees; provided, that ~~none of~~ no action expressly permitted to be taken by the Company or any of its Subsidiaries in clauses (a) through (s) of this Section 5.01 shall be deemed a breach of this sentence unless such action would constitute a breach of such specific provision; provided further, that neither the Company nor any of its Affiliates shall be required to ~~(or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make~~ pay any ~~payments to its business relationship counterparties,~~ compensation beyond ~~that~~ compensation paid in the ordinary course of business ~~in order~~ to ~~maintain~~ retain such ~~business relationships~~officers and employees. In addition to and without limiting the generality of the foregoing, during the Pre-Closing Period, except as (w) expressly required or expressly contemplated by this Agreement, (x) set forth in on Section 5.01 of the Company Letter, (y) required by applicable Law or (z) consented to in advance by Parent in writing ~~by Parent or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries not to: (a) amend, adopt any amendment or otherwise change (whether by merger, consolidation or otherwise) any of the Company Organizational Documents; (b) (i) split, combine, subdivide, exchange or reclassify any shares in its share capital or other equity interests, (ii) declare, set aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of its shares or other equity interests or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for, shares in its share capital or other equity interests, except for dividends or distributions paid by any of its wholly owned Subsidiaries to the Company or other wholly owned Subsidiaries of the Company, (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any Company Securities or any Company Subsidiary Securities, except as required by the terms of any Company Equity Plan, (iv) enter into any Contract with respect to the voting or registration of its share capital or any other Company Securities or Company Subsidiary Securities or (v) other than offers and sales pursuant to Form S-8 that are otherwise permitted under this Agreement, register the offer or sale of any class of debt or equity securities pursuant to the 1933 Act or otherwise subject any class of debt or equity securities to the periodic reporting requirements of the 1934 Act; (c) except as otherwise expressly permitted by Section 5.01(i), (i) issue, pledge, dispose, grant, transfer, encumber (or otherwise cause to be subject to any Lien), deliver or sell, or authorize the issuance, pledge, disposition, grant, transfer, encumbrance (or subjection to any Lien), delivery of or sale of, any shares of any Company Securities or Company Subsidiary Securities, other than the issuance of any Shares upon the exercise of Company Options or the settlement of Company RSUs and Company PSUs that are outstanding on the date of this Agreement in each case, in accordance with the terms of such Company Options and Company RSUs and Company PSUs as of the date of this Agreement, provided that, in the event that the Company is required to make a performance determination prior to the Closing, such determination shall be made in the ordinary course of business consistent with past practice, or (ii) adjust or amend the rights of, or any term of, any Company Security (including Company Equity Awards) or any Company Subsidiary Security; (d) (i) acquire (whether by merger or consolidation, acquisition of stock or other securities or assets or by formation of a joint venture or otherwise) any other Person or business or any assets (other than ordinary course purchases from vendors) or properties of any other Person or (ii) make any investment in any other Person by purchase of stock or securities, contributions to capital or property transfers, except in each case for (A) acquisitions from wholly owned Subsidiaries of the Company; (B) the purchase of equipment, supplies and inventory in the ordinary course of business consistent with past practice; (C) inbound licenses of Intellectual Property Rights in the ordinary course of business consistent with past practice; and (D) acquisitions of any assets (other than ordinary course purchases from vendors) as to which the aggregate consideration for all such acquisitions does not exceed $100,000,000 in the aggregate; (e) sell, lease, license, transfer, divest, allow to lapse, dispose of (whether by merger or consolidation, sale of stock or other securities or assets or by formation of a joint venture or otherwise), or otherwise mortgage, encumber or subject to any Lien (other than Permitted Liens), to any Person (including any Subsidiary of the Company) in a single transaction or series of related transactions any of its assets, securities, properties, interests or businesses, including the capital stock of Subsidiaries of the Company, except (A) in the ordinary course of business consistent with past practice, (B) disposition of immaterial equipment and immaterial property no longer required in the operation of the business and (C) sales or dispositions as to which the aggregate consideration for all such sales or dispositions does not exceed $10,000,000 in the aggregate; (f) enter into, amend, renew, extend, modify, terminate or waive any rights under, in each case, in any material respect, any Company Real Property Lease required to be listed in Section 3.15(b) of the Company Letter or Material Contract required to be listed in Section 3.21 of the Company Letter (or any lease that if entered into prior to the date hereof would be a Company Real Property Lease or any Contract that if entered into prior to the date hereof would be a Material Contract) or any Affiliate Agreement (except, in the case of Company Real Property Leases and Material Contracts, renewals and extensions in the ordinary course of business and as otherwise permitted by an express provision of Section 5.01(a)-(s)); (g) except for loans to employees made in the ordinary course of business, make any loans, advances or capital contributions to, or investments in, any other Person, other than loans, advances or capital contributions among the Company and any of its wholly owned Subsidiaries and capital contributions to or investments in its wholly owned Subsidiaries, in each case in the ordinary course of business consistent with past practice; (h) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or guarantees thereof (directly, contingently or otherwise), other than (A) indebtedness incurred between the Company and any of its wholly owned Subsidiaries or between any of such wholly owned Subsidiaries or guarantees by the Company of indebtedness of any wholly owned Subsidiary of the Company, in each case in the ordinary course of business consistent with past practice and (B) indebtedness pursuant to the Credit Agreement as in effect as of the date hereof, in an amount not to exceed the amount of such indebtedness currently outstanding, plus (1) $15,000,000, and (2) $35,000,000 to finance acquisitions permitted pursuant to Section 5.01(d); (i) except as required by the terms of a Company Plan (each as in existence as of the date hereof), (i) increase the compensation or benefits of any current, former or future Company Service Provider, (ii) grant any equity (or equity-based) award to any current, former or future Company Service Provider, (iii) grant any rights to severance, termination pay, retention or change in control benefit or agreement to any current, former or future Company Service Provider or increase the amount of such compensation or benefits, (iv) pay or award any bonus or incentive compensation (including any discretionary cash payments) to any current, former or future Company Service Provider, (v) establish, adopt, enter into, amend or terminate any Company Plan (or any plan, program or arrangement that would constitute a Benefit Plan if in effect on the date hereof) or Labor Agreement (or agreement that would be a Labor Agreement if in effect on the date hereof), (vi) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Benefit Plan, (vii) other than in the ordinary course of business, change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, (viii) amend or waive any performance or vesting criteria or accelerate the payment or vesting of any payment, equity or other incentive award or benefit provided or to be provided to any current, former or future Company Service Provider or otherwise pay any amounts or provide any benefits (including the forgiveness of indebtedness of any loan) not due such individual, (ix) loan or advance any money or other property to any current, former or future Company Service Provider, (x) hire or terminate the employment of any Company Service Provider (other than a termination for “cause”), other than in the ordinary course of business consistent with past practice for Company Service Providers with an annual base salary or annual base compensation of less than $200,000 or (xi) promote any employee to a position with an annual base salary or annual base compensation of $200,000 or more; (j) make or authorize any capital expenditures, except as consistent in all material respects with (i) the Company’s current capital expenditure plan set forth in Section 5.01(j) of the Company Letter, (ii) any other subsequent annual capital budget that (A) is prepared in the ordinary course of business by the Company and approved by the Company Board and (B) provides for total capital expenditures that do not exceed, in the aggregate, 110% of those set forth in the capital expenditure plan referred to in subclause (i) above; (i) cancel any material indebtedness; (ii) waive, release, grant or transfer any material claim or right of material value or consent to the termination of any material claim or right of material value; or (iii) commence any Action, except in connection with a breach of this Agreement or any other agreements contemplated hereby or otherwise related to the Transactions; (l) pay, discharge, compromise, settle or satisfy any Liability (whether absolute, accrued, asserted or unasserted, contingent or otherwise) or any Action (excluding any Action relating to this Agreement or any other agreements contemplated hereby or otherwise related to the Transactions) against the Company or any of its Subsidiaries or any of their respective directors or officers, other than (i) Liabilities or Actions relating to Taxes (which, for the avoidance of doubt, shall be governed by Section 5.01(p)), (ii) the payment, discharge, settlement or satisfaction of claims or Liabilities (A) fully covered by insurance, (B) reflected in or reserved against in the Company Balance Sheet (or the notes thereto) and for amounts not in excess of such reserves or (C) related to costs and expenses incurred by the Company in connection with the Transactions, or (iii) where the amount paid or to be paid by the Company and its Subsidiaries does not exceed $1,000,000, individually, or $7,500,000, in the aggregate (except with respect to settlement of the matters set forth on Section 5.01(l) of the Company Letter, which shall not exceed the amounts set forth therein) (in each case, net of insurance proceeds, indemnity, contribution or similar payments received or to be received by the Company or any of its Subsidiaries in respect thereof), in each case, only without the imposition of any material restrictions on the business or operations of the Company or any of its Subsidiaries or the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries or any of their respective officers or directors; (m) convene any general or special meeting of the shareholders of the Company other than the EGM and any Subsequent EGM pursuant to Section 2.04 or pursuant to Parent’s or Buyer’s request as set forth in Section 2.06(a) (unless the Company determines in good faith, after consultation with its outside legal counsel, that such a meeting is required by applicable Law); (n) write up, write down or write off the book value of any assets, except (i) for depreciation and amortization in accordance with GAAP consistently applied, (ii) as otherwise required under GAAP (including to increase any reserves for contingent Liabilities) or (iii) in the ordinary course of business consistent with past practice in accordance with GAAP; (o) change the Company’s methods of accounting, except as required by concurrent changes in GAAP or in Regulation S-X as promulgated by the SEC, as agreed to by its independent public accountants; (p) (i) change any material method of Tax accounting, (ii) settle or compromise any audit or other proceeding relating to a material amount of Tax, (iii) make or change any material Tax election or file any material amended Tax Return, (iv) agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of a material amount of Taxes, (v) enter into any closing agreement with respect to any material amount of Tax or surrender any right to claim any material Tax refund (in the case of clauses (i), (iii) and (iv), other than in the ordinary course of business consistent with past practice); (q) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger or other reorganization of the Company or any of its Subsidiaries (other than wholly-owned Subsidiaries or as contemplated by Section 2.07(c)); (r) enter into a new line of business outside of the business of the Company and its Subsidiaries conducted as of the date hereof; or (s) agree, resolve or commit to do any of the foregoing.

Appears in 3 contracts

Samples: Purchase Agreement (Thermo Fisher Scientific Inc.), Purchase Agreement (Patheon N.V.), Purchase Agreement (Patheon N.V.)

Conduct of the Company. From the date of this Agreement until the ~~Closing or~~ earlier to occur of the ~~earlier~~ Effective Time and the termination of this Agreement in accordance with Article ~~8 (the “Pre-Closing Period”)~~IX, except as ~~(i)~~ otherwise expressly ~~required~~ permitted or ~~expressly~~ contemplated by this Agreement, ~~(ii)~~ as set forth in Section ~~5.01~~ 5.1 of the Company Disclosure Letter, ~~(iii) required by applicable Law or (iv)~~ as consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed)) or as required by applicable Law, the Company shall, and shall cause each of its Subsidiaries to, (Ai) conduct its business in the ordinary course of business consistent with past practices, (ii) subject to, for the avoidance of doubt, Section 7.1 and Section 5.1(n), maintain in effect all Governmental Authorizations necessary for the conduct of the Company and its Subsidiaries’ business and (iii) use its commercially reasonable efforts to preserve intact in all material respects its current business organization, ongoing businesses and significant relationships with Third Parties, including Governmental Authorities. Without limiting the generality of the foregoing, from the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as otherwise expressly permitted or contemplated by this Agreement, as set forth in Section 5.1 of the Company Disclosure Letter, as consented to in writing by Parent (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, the Company shall not, nor shall it permit any of its Subsidiaries to: (a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of the Company that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby); (b) (i) other than dividends and other distributions by a direct or indirect Subsidiary of the Company to the Company or any direct or indirect wholly-owned Subsidiary of the Company, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify any Company Securities or Company Subsidiary Securities or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of capital stock of the Company, except, in the case of this clause (ii), following consultation with Parent, for the grant of Company RSUs and Company Restricted Stock under the Company Equity Plan in the ordinary course of business consistent with past practice but in no event in an amount that would result in the issuance of shares of Company Stock upon the vesting or settlement of such Company RSUs or Company Restricted Stock (as applicable) in excess of 1.2 million shares of Company Stock on the terms and conditions set forth on Section 5.1(b)(ii) of the Company Disclosure Letter, or (iii) purchase, redeem or otherwise acquire or offer to purchase, redeem or otherwise acquire any Company Securities or Company Subsidiary Securities, except, in the case of this clause (iii), for (A) such purchases, redemptions and other acquisitions solely between the Company and a wholly owned Subsidiary thereof, or between a wholly owned Subsidiary of the Company and another wholly owned Subsidiary of the Company and (B) redemptions, repurchases or acquisitions in connection with the settlement of Company RSUs or vesting of Company Restricted Stock, in each case that are outstanding on the date of this Agreement and in accordance with the applicable terms thereof as they exist on the date of this Agreement; (c) (i) issue, deliver, pledge, sell or otherwise encumber to any Lien (other than a Permitted Lien) or authorize the issuance, delivery, pledge, sale or encumbrance to any Lien (other than a Permitted Lien) of any shares of any Company Securities or Company Subsidiary Securities, other than (x) the issuance of any shares of Company Stock upon the settlement of Company RSUs that are outstanding on the date of this Agreement and in accordance with the applicable terms thereof as they exist on the date of this Agreement, (y) the grant of Company RSUs and Company Restricted Stock under the Company Equity Plan in the ordinary course of business consistent with past practice in reliance on the exception to clause (ii) of Section 5.1(b) and (z) issuances of securities of the Company’s Subsidiaries to the Company or to wholly owned Subsidiaries of the Company or (ii) amend any term of any Company Security (in each case, whether by merger, consolidation or otherwise); (d) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof with a value or purchase price (including all potentially payable “earn-out” consideration or any other obligation to potentially pay consideration in the future) in excess of $50 million individually or $50 million in the aggregate, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement that were publicly announced prior to the date of this Agreement or otherwise made available to Parent prior to the date hereof and (ii) purchases of assets in the ordinary course of business, including purchases of Mortgage Loans and Mortgage Servicing Rights; (e) sell, assign, license, lease, transfer, abandon or otherwise dispose of, or create any Lien on, or otherwise dispose of, any of the Company’s or its Subsidiaries’ material assets, other than (i) Permitted Liens or (ii) in connection with (A) MSR Related Transactions or other transactions involving Mortgage Servicing Rights having an aggregate unpaid principal balance less than $5 billion or (B) Mortgage Loans in the ordinary course of business; (f) incur any indebtedness for borrowed money or guarantees thereof, other than (i) the MSR Related Transactions, (ii) under the Secured Company Indebtedness or (iii) indebtedness incurred for the refinancing of the Company’s 6.500% Senior Notes due 2018 so long as (x) the aggregate costs and fees incurred in connection with such refinancing indebtedness, when added to the costs and fees that would be required to be incurred in order to pay off such refinancing indebtedness at Closing, would not exceed $15,000,000 and (y) such refinancing indebtedness can be prepaid or refinanced at Closing; (g) make any loans, advances or capital contributions to, or investments in, any Person in excess of $25 million in the aggregate, other than (i) the Company or its wholly owned Subsidiaries or (ii) Mortgage Loans in the ordinary course of business; (h) other than in the ordinary course of business consistent with past practice (including renewals consistent with the terms thereof), (x) amend or modify in any material respect or terminate (excluding terminations or renewals upon expiration of the term thereof in accordance with the terms thereof) any Company Material Contract, (y) enter into any Contract that would constitute a Related Party Contract or (z) waive, release or assign any material rights, claims or benefits, or grant any material consent, under any Company Material Contract; (i) other than to the extent required by the terms of any Company Plan, (i) grant or increase any severance or termination pay or benefits with respect to any independent contractor, employee, officer or director of the Company or any of its Subsidiaries, except with respect to officers and employees of the Company or its Subsidiaries who are not Section 16 Officers (“Non-Management Employees”) in the ordinary course of business consistent with past practice, (Bii) ~~use its reasonable best efforts~~ make or grant any bonus or any incentive compensation, other than with respect to ~~preserve intact~~ bonuses or incentive compensation for performance periods in ~~all~~ progress as of the date hereof that will be completed prior to the Effective Time or for Non-Management Employees in the ordinary course of business consistent with past practice, (iii) establish, adopt, enter into, amend or terminate any Company Plan or establish, adopt, enter into, amend or terminate any other benefit plan, arrangement that would be a Company Plan if in existence on the date of this Agreement, except for routine amendments or renewals to health and welfare plans (other than severance plans) that would not result in a material ~~respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which~~ increase in benefits or in cost to the Company ~~has material business relationships and keep available the services~~ or any of its ~~present officers and key employees and~~ Subsidiaries, (Civ) ~~use commercially reasonable efforts~~ except in the ordinary course of business consistent with past practice for Non-Management Employees, increase the compensation, bonus or other benefits payable or provided to ~~undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided~~any independent contractor, ~~that none~~ employee, officer or director of the Company or any of its ~~Subsidiaries shall be required~~ Subsidiaries, other than promotion or merit-based annual salary increases (and any corresponding increase in incentive opportunity, to ~~(or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed~~the extent determined based on annual base salary) ~~make any payments to its business relationship counterparties, beyond that paid~~ for Section 16 Officers in the ordinary course of business consistent with past practice which increases do not in ~~order~~ the aggregate exceed 5% for any one-year period or more than 10% as to any individual Section 16 Officer, (v) grant any equity or equity-based awards, except for the grant of Company RSUs and Company Restricted Stock under the Company Equity Plan in the ordinary course of business consistent with past practice in reliance on the exception to clause (ii) of Section 5.1(b), (vi) hire any employees that would reasonable be expected to be considered Section 16 Officers were they employed at the end of the prior fiscal year, other than to replace any Section 16 Officer whose employment terminated prior to the Effective Time, (vii) loan or advance any money or other property to any independent contractor, employee, officer or director of the Company or any of its Subsidiaries, other than routine expense advances in the ordinary course of business consistent with past practice, or loans under the Company’s 401(k) plan in accordance with the terms of the Company’s 401(k) plan, or (viii) adopt, become party to or materially amend any collective bargaining agreement; (j) materially change the Company’s methods, principles or practices of financial accounting or annual accounting or fiscal period, except as required by GAAP or in Regulation S-X of the Exchange Act (or any interpretation thereof), any Governmental Authority or applicable Law; (k) materially modify the Company’s or any of its Subsidiaries’ Privacy Policies or the operation or security of its material IT Systems; (l) make, change or revoke any Tax election (other than any election that is not material and is made in the ordinary course of filing Tax Returns), file any material amended Tax Return or claim for a Tax refund, change any Tax accounting period or method, enter into any closing agreement, request any ruling from a Taxing Authority, surrender any right to a material Tax refund, consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, or settle or compromise any material Tax claim; (m) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of the Company or any material Subsidiary of the Company; (n) settle any Proceeding against the Company or any of its Subsidiaries other than in accordance with Section 5.1(n) of the Company Disclosure Letter; (o) fail to maintain ~~such business relationships. In addition~~ in full force and effect existing insurance policies in accordance with their terms or permit any insurance coverage with respect to the material assets, operations and activities of the Company and its Subsidiaries to lapse without ~~limiting the generality~~ obtaining replacement coverage; or (p) agree, resolve or commit to do any of the foregoing. Parent and Merger Sub acknowledge and agree that: (i) nothing contained in this Agreement shall give Parent or Merger Sub, ~~during~~ directly or indirectly, the ~~Pre-Closing Period, except as (w) expressly required~~ right to control or ~~expressly contemplated by this Agreement~~direct the Company’s operations prior to the Closing, (xii) ~~set forth in Section 5.01 of~~ prior to the ~~Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed)~~Closing, the Company shall ~~not~~exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Parent or Merger Sub shall ~~cause its Subsidiaries not to:~~be required with respect to any matter set forth in this Section 5.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Wmih Corp.), Merger Agreement (Nationstar Mortgage Holdings Inc.)

Appears in 2 contracts

Samples: Merger Agreement, Agreement and Plan of Merger

Conduct of the Company. ~~From the date of this Agreement until the Closing or the earlier termination of this Agreement in accordance with Article 8 (the “Pre-Closing Period”), except as~~ Except (i) ~~expressly required or expressly contemplated by this Agreement, (ii) set forth in Section 5.01~~ with the prior written consent of ~~the Company Letter, (iii) required by applicable Law or (iv) consented to in advance in writing by~~ Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed~~conditioned; provided that such consent will be deemed to have been given by Parent if (A) Parent’s response to the Company’s written request for such consent is not provided within three calendar days of the Company’s written request (it being acknowledged and agreed that, for purposes of this Section 6.01, an email sent to each of the Persons set forth on Section 6.01 of the Parent Disclosure Letter or their designees shall be considered a written request) and (B) the Company provides information reasonably requested by Parent with respect to matter for which consent is requested), (ii) as expressly contemplated by this Agreement, (iii) as set forth in Section 6.01 of the Company Disclosure Letter, or (iv) as required by Applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (Ax) conduct its business in the ordinary course consistent with past practice, (y) conduct its business in material compliance with all ~~material respects~~ Applicable Laws and (z) to the extent consistent with clauses (x) and (y) of this sentence, use its commercially reasonable efforts to preserve intact its current business organizations and to preserve its relationships with Third Parties (including customers, suppliers, lenders and others having business dealings with the Company or any of its Subsidiaries) (provided, that neither the Company nor any of its Subsidiaries shall be obligated to make any payments or grant any concessions to such Third Parties other than payments in the ordinary course consistent with past practice) and keep available the services of its directors, officers and key employees (provided that neither the Company nor any of its Subsidiaries shall be obligated to increase the compensation of, or make any other payments or grant any concessions to, such directors, officers and employees). Without limiting the generality of the foregoing, except (i) with the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned, except in the case of Sections 6.01(a), 6.01(b), 6.01(c), 6.01(d), 6.01(e), 6.01(f), 6.01(g), 6.01(i), 6.01(k), 6.01(m), 6.01(p), 6.01(r) or 6.01(t), and provided that such consent will be deemed to have been given by Parent if (A) Parent’s response to the Company’s written request for such consent is not provided within three calendar days of the Company’s written request (it being acknowledged and agreed that, for purposes of this Section 6.01, an email sent to each of the Persons set forth on Section 6.01 of the Parent Disclosure Letter or their designees shall be considered a written request) and (B) the Company provides information reasonably requested by Parent with respect to matter for which consent is requested), (ii) as expressly contemplated by this Agreement, (iii) as set forth in Section 6.01 of the Company Disclosure Letter, or (iv) as required by Applicable Law, the Company shall not, nor shall it permit any of its Subsidiaries to: (a) amend its memorandum and articles of association or other similar organizational documents (whether by merger, consolidation or otherwise); (b) (i) split, combine or reclassify any shares, (ii) declare, set aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of its share capital or set any record date therefor, except for dividends by any of its wholly owned Subsidiaries, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities; (c) (i) grant, issue, deliver, transfer or sell any Company Securities or Company Subsidiary Securities or (ii) amend any term of any Company Security or any Company Subsidiary Security; (d) (i) acquire (by merger, consolidation, acquisition of shares or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses from any other Person, or make any loans, advances, or capital contributions to or investments in any Person, having a value in excess of $1,000,000 in the aggregate, from any other Person, other than in connection with a capital expenditure permitted pursuant to Section 6.01(l), (ii) merge or consolidate with any other Person or (iii) adopt a plan of complete or partial liquidation, dissolution, recapitalization, restructuring or other similar action; (e) sell, lease, license, abandon, dispose of or otherwise transfer any Subsidiary or any amount of assets, securities, properties, interests or businesses (i) to a Related Party or (ii) for consideration either (A) below market value or (B) in excess of $1,000,000 in the aggregate, other than sales or other dispositions of inventory in the ordinary course of business consistent with past practice to any Person other than a Related Party; (f) create, assume, incur or otherwise be liable with respect to any indebtedness for borrowed money (or amend and restate or refinance any existing indebtedness for borrowed money) or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or any guarantee of the foregoing or enter into any “keep well” or other agreement to maintain any financial statement condition of another Person, in each case other than (i) incurred or assumed in the ordinary course of business consistent with past practice (including any borrowings under the Company’s existing credit facilities and in respect of letters of credit) and in no event in excess of $1,000,000 in the aggregate, (ii) indebtedness incurred between or among the Company or any of its wholly owned Subsidiaries made in the ordinary course of business consistent with past practice, or (Biii) ~~use its reasonable best efforts to preserve intact in all material respects its business organization~~ accrual of interest, drawdowns, premiums, penalties, fees, expenses and ~~material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the~~ breakage costs under any Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 Material Contract existing as of the ~~Company Letter; provided~~date hereof; (g) prepay, ~~that none~~ redeem, repurchase, defease, cancel or otherwise terminate (or amend, restate or refinance any existing indebtedness for borrowed money) any indebtedness for borrowed money or any debt securities or warrants of the Company or any of its Subsidiaries ~~shall be required~~ (other than scheduled payments of the Company’s existing indebtedness when due); (h) (i) grant or increase any severance or termination pay to (or ~~shall without Parent’s~~ amend any existing severance pay or ~~Buyer’s prior consent~~termination arrangement with) any Company Employee or director of the Company or any Subsidiary, (ii) increase benefits payable under any severance or termination pay policies or employment agreements existing as of the date of this Agreement, (iii) enter into any employment, deferred compensation, retention or other similar agreement (or any amendment to any such existing agreement) with any Company Employee or directors of the Company or any Subsidiary, (iv) establish, adopt or amend any Labor Contract or Company Employee Plan, or (v) increase compensation, bonus or other benefits payable to any Company Employee or director of the Company or any Subsidiary, except for retention bonuses not to ~~be unreasonably withheld~~exceed $6,000,000 in the aggregate that are payable to employees of the Company and its Subsidiaries (but not to employees of the Manager); (i) pay any success fee or bonus in connection with the Transactions other than to the Persons set forth on Section 6.01(i) of the Company Disclosure Letter in accordance with the fee arrangements disclosed to Parent prior to the date of this Agreement; (j) change the Company’s methods of accounting or accounting principles or practices, ~~conditioned~~ except as required by GAAP or ~~delayed~~in Regulation S-X of the Exchange Act and approved by its independent public accountants; (k) make, change or revoke any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Returns or claims for Tax refunds, enter into any closing agreement, settle or compromise any Tax claim (except for Taxes that become due and payable in the ordinary course of business), audit or assessment, surrender any right to claim a Tax refund, offset or other reduction in Tax liability, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment; (l) make any ~~payments~~ capital expenditure, or incur any obligation or liability in respect thereof, in excess of $5,000,000 in the aggregate, in excess of amounts budgeted for by the Company or its Subsidiaries as described in Section 6.01(l) of the Company Disclosure Letter other than capital expenditures relating to ~~its business relationship counterparties, beyond that paid~~ the maintenance of the Company Fleet Assets in the ordinary course of business consistent with past practice or capital expenditures in ~~order~~ connection with any drilling contract the entry into which is permitted under this Section 6.01, so long as, in the case of this Section 6.01(l), no such capital expenditure is made to ~~maintain such business relationships. In addition to and without limiting the generality of the foregoing, during the Pre-Closing Period~~a Related Party; (m) create or incur any Lien (except for a Permitted Lien) on any material asset, except as otherwise permitted under this Section 6.01; (wn) ~~expressly required~~ enter into (or, following entry, terminate, amend, modify or ~~expressly contemplated by~~ waive rights or claims under) any contract that would have been a Company Material Contract were the Company a party or subject thereto on the date of this ~~Agreement~~Agreement other than (i) the entry into any contract that would have been a Company Material Contract pursuant to Section 4.18(a)(xvi) so long as the day rates and the terms generally are on terms consistent with market practice in the offshore drilling industry at the time of such entry or (ii) renewals of existing Company Material Contracts in the ordinary course of business consistent with past practice; (o) terminate or amend any Company Material Contract or Real Property Lease, ~~(x) set forth in Section 5.01~~ or waive, release or assign any material right, claims or benefit of the Company ~~Letter~~thereunder; (p) terminate, renew, suspend, abrogate, amend or modify in any material respect any Company Permit other than in the ordinary course of business consistent with past practice; (q) settle, or offer or propose to settle, any Proceeding or other claim involving or against the Company or any Subsidiary, other than (i) the settlement of Proceedings (other than Proceedings involving any counterclaim) that require payments by the Company or any of its Subsidiaries in an amount not to exceed $2,500,000 in the aggregate, or (ii) the settlement of Proceedings (other than Proceedings involving any counterclaim) disclosed, reflected or reserved against in the most recent financial statements (or notes thereto) of the Company included in the Company SEC Documents for an amount not in excess of the amount so disclosed, reflected or reserved; provided, however, that the foregoing clauses (i) and (ii) shall not permit the Company or any of its Subsidiaries to settle any Proceeding (A) that would involve injunctive or equitable relief, impose any restrictions or changes on the business or operations of the Company or any of its Subsidiaries, involve any admission of any wrongdoing by the Company or any of its Subsidiaries, or involve any license, cross license or similar arrangement with respect to material Intellectual Property owned by the Company or any of its Subsidiaries, (yB) ~~required by applicable Law~~ for which such settlement is not permitted pursuant to Section 8.08 or (zC) ~~consented~~ that is listed on Section 6.01(q) of the Company Disclosure Letter (the “Specified Litigation”); provided, further, that for the avoidance of doubt, to ~~in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed~~the extent of any conflict between Section 6.01(k) and this Section 6.01(q), Section 6.01(k) shall control; (r) fail to use commercially reasonable efforts to maintain existing material insurance policies or comparable replacement policies; (s) authorize any of, or commit or agree to take any of, the ~~Company shall not~~foregoing actions in the preceding Sections 6.01(h), ~~and shall cause its Subsidiaries not to:~~6.01(j), 6.01(l), 6.01(n), 6.01(o) or 6.01(q); or (t) authorize any of, or commit or agree to take any of, the foregoing actions in the preceding Sections 6.01(a), 6.01(b), 6.01(c), 6.01(d), 6.01(e), 6.01(f), 6.01(g), 6.01(i), 6.01(k), 6.01(m), 6.01(p) or 6.01(r).

Appears in 2 contracts

Samples: Merger Agreement (Transocean Ltd.), Merger Agreement (Transocean Ltd.)

Conduct of the Company. From the date of this Agreement until the ~~Closing or~~ earlier to occur of the ~~earlier~~ Effective Time and the termination of this Agreement in accordance with Article ~~8 (the “Pre-Closing Period”),~~ IX except as (i) as expressly ~~required~~ permitted or expressly contemplated by this Agreement, (ii) as set forth in Section ~~5.01~~ 5.1 of the Company Disclosure Letter, (iii) ~~required by applicable Law or (iv)~~ as consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed), (iv) for any actions taken reasonably and in good faith to respond to COVID-19 Measures (provided that, in the case of this clause (iv), the Company shall, to the extent reasonably practicable, provide reasonable advance notice and consult with Parent prior to taking any such actions) or (v) as required by applicable Law, the Company shall, and shall cause each of its Subsidiaries to, (A) conduct its business in all material respects in the ordinary course of business consistent with past ~~practice,~~ practice and (B) use its reasonable best efforts to preserve substantially intact ~~in all material respects~~ its current business organization and maintain existing relations and goodwill with material customers, suppliers, distributors, creditors, lessors, Employees and other material business ~~relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships~~ relations and keep available the services of the Company’s and its Subsidiaries’ present ~~officers and~~ key ~~employees and~~ employees; provided that (Cx) ~~use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of~~ no action by the Company or any of its Subsidiaries ~~shall~~ permitted by an exception to any of Section 5.1(a) through (q) will be ~~required to~~ a breach of this sentence and (~~or shall without Parent~~y) the Company’s or ~~Buyer’s prior consent,~~ any of its Subsidiaries’ failure to take any action prohibited by any of Section 5.1(a) through (q) will not to be ~~unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course~~ a breach of ~~business in order to maintain such business relationships~~this sentence. ~~In addition to and without~~ Without limiting the generality of the foregoing, ~~during~~ from the ~~Pre-Closing Period~~date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as ~~(w)~~ otherwise expressly ~~required~~ permitted or expressly contemplated by this Agreement, ~~(x)~~ as set forth in Section ~~5.01~~ 5.1 of the Company Disclosure Letter, ~~(y) required by applicable Law or (z)~~ as consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed)) or as required by applicable Law, the Company shall not, ~~and~~ nor shall ~~cause~~ it permit any of its Subsidiaries ~~not~~ to: (a) amend or otherwise change its certificate or articles of incorporation, bylaws or other similar organizational documents; (b) split, combine, recapitalize, subdivide or reclassify any Company Securities or Company Subsidiary Securities, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities (other than in connection with the exercise, vesting or settlement of Company Awards in accordance with past practice (or as modified after the date of this Agreement in accordance with the terms of this Agreement)); (i) issue, deliver, sell, assign, pledge, grant, transfer, dispose of, or encumber (other than Permitted Liens), or authorize the issuance, delivery, sale, assignment, pledge, grant, transfer, disposition or encumbrance of, any Company Securities or Company Subsidiary Securities, other than (x) in connection with regular quarterly grants of Company DSUs to directors which are made in the ordinary course of business, in each case subject to the terms and conditions in the values as set forth in Section 5.1(c) of the Company Disclosure Letter, (y) the issuance of any shares of Company Common Stock upon the exercise of Company Stock Options or the settlement of Company RSUs, Company PSUs and Company DSUs that are outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement and (z) issuances of securities of the Company’s Subsidiaries to the Company or to wholly owned Subsidiaries of the Company or (ii) amend any term of any Company Security or Company Subsidiary Security (in each case, whether by merger, amalgamation, consolidation or otherwise); (d) make or commit to any annual capital expenditures in any future fiscal year, except (i) in the ordinary course of business, (ii) pursuant to the Company’s current capital expenditures budget provided to Parent prior to the date hereof (the “2022 Capex Budget”), either on projects itemized, if any, in the budget or on substitute projects, (iii) with respect to future annual capital expenditures budgets after fiscal year 2022, capital expenditures that do not exceed the aggregate amounts budgeted in the Company’s capital expenditures budget for fiscal year 2023 provided to Parent prior to the date hereof, (iv) for any actions taken reasonably and in good faith to respond to COVID-19 Measures not to exceed $10 million in the aggregate, or (v) any unbudgeted capital expenditures not to exceed $10 million individually or $30 million in the aggregate per annum without taking into account any amounts permitted by the foregoing clause (iv); (e) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest or otherwise invest in any Person or any division or assets thereof with a value or purchase price (including all potentially payable “earn-out” consideration or any other obligation to potentially pay consideration in the future) in excess of $5 million individually or $10 million in the aggregate, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement that were publicly announced prior to the date of this Agreement or otherwise made available to Parent prior to the date hereof and (ii) purchases of goods, raw materials and equipment in the ordinary course of business consistent with past practice; (f) sell, assign, license, lease (as lessor) or otherwise transfer, abandon, allow to let lapse or expire or otherwise dispose of, fail to maintain, pledge or create any Lien on, or authorize any of the foregoing with respect to any material portion of the Company’s or its Subsidiaries’ assets, properties or rights, other than (i) Permitted Liens, (ii) the sale of inventory, or of obsolete or outdated personal property or equipment, in each case, in the ordinary course of business consistent with past practice, (iii) Intellectual Property portfolio management and maintenance conducted in the ordinary course of business consistent with past practice or (iv) non-exclusive licenses granted to third parties in the ordinary course of business consistent with past practice; (g) incur, prepay, refinance or amend the terms of any indebtedness for borrowed money or guarantees thereof or issue any debt securities, warrants or other rights to acquire any debt securities or assume, guarantee or endorse or otherwise become responsible for, the obligations of any Person, other than (x) intercompany indebtedness, (y) under the Company Credit Facilities for (i) working capital purposes in the ordinary course of business and (ii) any other purposes permitted under this Section 5.1 in an amount not to exceed $10,000,000 and (z) the issuance of letters of credit and bonds in the ordinary course of business consistent with past practice; (h) other than in the ordinary course of business consistent with past practice or as would not be reasonably expected to impair the ability of the Company and its Subsidiaries to conduct its business as currently conducted, (i) amend or modify in any material respect or terminate (excluding terminations upon expiration of the term thereof in accordance with the terms thereof or for cause) any Company Material Contract, (ii) waive, release or assign any material rights, claims or benefits under any Company Material Contract or (iii) enter into any Contract that would constitute a Company Material Contract if entered into prior to the date hereof; (i) other than as required by the terms of any Company Plan or Contract as in effect on the date of this Agreement or adopted or amended after the date of this Agreement in compliance with this Section 5.1, any CBA or applicable Law, (i) adopt, enter into, establish, terminate, or materially amend or modify any Company Plan (or plan or arrangement that would be a Company Plan if in effect on the date of this Agreement), except for routine amendments or renewals of Company Plans that would not result in a material increase in benefits or costs to the Company and its Subsidiaries, or any CBA, (ii) accelerate or increase payments or benefits payable under any Company Plan, (iii) grant any additional equity-based compensation awards (including, for the avoidance of doubt, Company PSUs, Company RSUs and Company DSUs, which upon the consummation of the Merger, shall be settled only in cash and Contingent Value Rights), pursuant to the Equity Plans or otherwise, or allow Employees to elect to receive cash incentive compensation in the form of equity-based compensation awards (except for grants of (x) in connection with regular quarterly grants of Company DSUs to directors which are made in the ordinary course of business, in each case subject to the terms and conditions in the values as set forth in Section 5.1(i) of the Company Disclosure Letter, which, upon the consummation of the Merger, shall be settled only in cash and Contingent Value Rights or (y) the grant of Company PSUs or Company RSUs after the date of this Agreement in accordance with Section 5.1(i) of the Company Disclosure Letter, which, upon the consummation of the Merger, shall be settled only in cash and Contingent Value Rights) , (iv) grant any loan to, or increase compensation, bonus, severance or other benefits payable to any Employee, officer, director, consultant or other similar agent of the Company or its Subsidiaries, other than promotion or annual merit salary increases (and increases in bonus or other compensation to the extent related to base salary and tied to such promotion or annual merit salary increases), in the ordinary course of business that do not, in the aggregate, exceed the aggregate amounts budgeted for such items for fiscal year 2022, (v) hire (other than to fill an open position) or terminate (other than a termination “for cause”) any Employee who has a position that is at or above grade level 29 (“Vice President/General Manager Level”), (vi) grant any severance, change of control, retention, termination or similar compensation or benefits payable to any Employee, officer, director or consultant of the Company or its Subsidiaries, (vii) materially increase the funding or contribution rate with respect to any Company Plan, or (viii) enter into any employment or other similar agreement (or amend any existing agreement) with respect to any Vice President/General Manager Level Employee; (j) change the Company’s methods, principles, policies, practices or procedures of financial accounting, except as required by GAAP or SEC rule or other applicable Law; (k) make, change or revoke any material Tax election, change any annual Tax accounting period, adopt or change any material method of Tax accounting, amend any material Tax Returns or file any claims for material Tax refunds, enter into any material closing agreement, settle any material Tax claim, audit or assessment or surrender any right to claim a material Tax refund, except, in each of the foregoing cases, to the extent any such action is undertaken in the ordinary course of business, or request any ruling or written determination from a Taxing Authority with respect to a material amount of Taxes; (l) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of the Company or any Subsidiary of the Company; (m) settle, or offer or propose to settle, any Proceeding involving or against the Company or any of its Subsidiaries for any payment in excess of $5 million (excluding, for the avoidance of doubt, amounts paid by insurance and other amounts not paid out-of-pocket by the Company), or which would reasonably be expected to (i) prevent or materially delay or impair the consummation of the Merger or the other transactions contemplated by this Agreement or (ii) involve any criminal liability or any admission of material wrongdoing or any material wrongful conduct by the Company or any of its Subsidiaries; (n) declare, set aside, establish a record date for or pay any dividends on, or make any other distributions in respect of, any Company Securities or any Company Subsidiary Securities, other than distributions by any direct or indirect wholly-owned Subsidiary of the Company to the Company or any other wholly-owned Subsidiary of the Company; (o) other than in the ordinary course of business consistent with past practice, make any loans, advances, or capital contributions to or investments in any Person, including guarantees of the obligations of such Person, in excess of $5 million in the aggregate, other than the Company or any direct or indirect wholly owned Subsidiary of the Company; (p) enter into any new line of business outside its existing lines of business as of the date of this Agreement; or (q) agree, resolve, authorize or commit to do any of the foregoing. (r) Parent and Merger Sub acknowledge and agree that: (i) nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s operations prior to the Closing, (ii) prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Parent or Merger Sub shall be required with respect to any matter set forth in this Section 5.1 or elsewhere in this Agreement to the extent that the requirement of such consent could violate any applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Domtar CORP), Merger Agreement (Resolute Forest Products Inc.)

Conduct of the Company. ~~From~~ Except (t) with the ~~date~~ prior written consent of ~~this Agreement until the Closing or the earlier termination of this Agreement in accordance with Article 8~~ Parent (the “Pre-Closing Period”), except as (i) expressly required or expressly contemplated by this Agreement, (ii) set forth in Section 5.01 of the Company Letter, (iii) required by applicable Law or (iv) consented to in advance in writing by Parent or Buyer (such which consent shall not to be unreasonably withheld, conditioned or delayed), (u) as expressly permitted, required or contemplated by this Agreement, (v) as set forth in Section 6.01 of the Company Disclosure Schedule, (w) as required by Applicable Law, (x) pursuant to the terms of any Company Plan in effect as of the date hereof, (y) in connection with any reasonable action taken, or omitted to be taken, pursuant to any COVID-19 Measures or which is otherwise taken, or omitted to be taken, in reasonable response to COVID-19 in good faith, from the date hereof until the Effective Time (provided that the Company shall consult if legally permissible with Parent in good faith prior to taking such actions to the extent reasonably practicable under the circumstances), or (z) as expressly required or contemplated by any Contract between the Company or any of its Subsidiaries, on the one hand, and ONE or any of its Affiliates, on the other hand, the Company (a) shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to (A1)(A) ~~conduct~~ operate the Company Vessels, or cause the Company Vessels to be operated, (i) in a customary manner consistent with past practice, (ii) in accordance with the requirements of the class and flag state of each of the Company Vessels and the applicable manager’s safety management systems and (iii) in compliance with the requirements of port states with which each Company Vessel trades and (B) in the ordinary course of business maintain the Company Vessels, or cause the Company Vessels to be maintained, in good working condition and (2) use commercially reasonable efforts to preserve substantially intact its ~~business~~ business, organization, assets and properties, and (3) use commercially reasonable efforts to preserve in all material respects its relationships with any customers, suppliers and any other Persons with which it has material business relations; provided, however, that no action by the Company or its Subsidiaries with respect to matters specifically addressed by any provision of Section 6.01(b) shall be deemed a breach of this sentence unless such action constitutes a breach of such provision of Section 6.01(b), and (b) shall not, and shall not permit any of its Subsidiaries to: (i) amend its articles of incorporation, bylaws or other similar organizational documents; (ii) (A) split, combine or reclassify any shares of its capital stock, (B) other than as expressly contemplated by Section 6.07, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, except for dividends or other such distributions by any of its wholly owned Subsidiaries and dividends payable to the holders of the Designated Company Preferred Shares, (C) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities, except (x) as required by the terms of the Company Stock Plan with respect to any Company Options, Company RSUs and Company Phantom Shares, in each case, that are issued and outstanding as of the date hereof or after the date hereof in accordance with clause (iii) below, (y) pursuant to the terms of the Exchangeable Notes Indenture or (z) pursuant to an exercise of the Capped Calls or otherwise pursuant to their terms or (D) enter into any agreement with respect to the voting of any Company Securities or Company Subsidiary Securities; (iii) (A) except for long-term incentive awards granted in the ordinary course of business in connection with the Company’s year-end compensation review in an aggregate target amount not to exceed an amount equal to 120% of the aggregate grant date fair value of all equity and equity-based incentive awards granted in the ordinary course of business in connection with the Company’s year-end compensation review for the 2021 calendar year, issue, grant, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company Securities or Company Subsidiary Securities, other than the issuance of (1) any Company Common Shares upon the exercise of Company Options that are issued and outstanding as of the date hereof, in accordance with their terms, (2) any Company Common Shares upon the settlement of Company RSUs or Company Phantom Shares that are issued and outstanding as of the date hereof, in accordance with their terms, (3) any Company Common Shares in the ordinary course in accordance with the Company’s current dividend reinvestment program for interested shareholders that have elected to reinvest all or a portion of cash dividends received to purchase Company Common Shares, and (4) any Company Subsidiary Securities to the Company or any other wholly owned Subsidiary of the Company or (B) amend any term of any Company Security or any Company Subsidiary Security, except as required by the terms of any Company Plan; (iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, (A) any business or any division thereof or all or substantially all of the assets of, equity or voting securities in, any Person or (B) any vessel, other than, (x) acquisitions of assets, properties, inventory, equipment, supplies and materials in the ordinary course of business, (y) acquisitions pursuant to existing Material Contracts or (z) acquisitions contemplated by the business plan set forth in Section 6.01(b)(iv) of the Company Disclosure Schedule (the “Approved Business Plan”); (v) sell, assign, transfer, convey, lease, license, abandon, allow to lapse or expire, subject to or, grant or suffer to exist any Lien (other than Permitted Liens) on, or otherwise dispose of any of its material assets, securities, properties, interests or businesses, other than (A) the sale or licensing of goods and services (including licenses of Intellectual Property) to customers, suppliers, vendors, partners and other Persons in the ordinary course of business, (B) disposals of obsolete or worthless assets at the end of their scheduled retirement, (C) pursuant to Contracts in effect on the date hereof and (D) transfers among the Company and its wholly owned Subsidiaries, or among the wholly owned Subsidiaries of the Company; (vi) make any material loans, advances or capital contributions to, or investments in, any other Person (other than (A) advances of business expenses to employees in the ordinary course of business, (B) accounts receivable from customers in the ordinary course of business, (C) loans or advances among the Company and any of its wholly owned Subsidiaries and capital contributions to or investments in its wholly owned Subsidiaries, (D) investments of cash in the ordinary course of business not in excess of $10,000,000 in the aggregate, (E) advances of expenses to any director or officer of the Company or its Subsidiaries in connection with advancement obligations in effect on the date of this Agreement or (F) investments constituting Cash Equivalents in the ordinary course of business); (vii) incur any indebtedness for borrowed money or guarantees thereof, other than (A) pursuant to any agreements in effect as of the date hereof (as such agreements may be amended, amended and restated, supplemented or otherwise modified in a manner that (1) does not increase the borrowing capacity thereunder and (2) does not restrict the transactions contemplated by this Agreement), (B) indebtedness incurred between the Company and any of its wholly owned Subsidiaries or between any of such wholly owned Subsidiaries or guarantees by the Company of Indebtedness of any wholly owned Subsidiary of the Company, (C) any obligations under the Company’s existing Contracts as of the date hereof to post additional cash collateral under any letters of credit existing as of the date hereof, (D) other indebtedness for borrowed money not in excess of $50,000,000 in the aggregate (with individual expenditures subject to the Company’s normal governance procedures), in the case of this clause (D), solely to the extent such indebtedness permits the transactions contemplated by this Agreement and is in form and substance reasonably acceptable to Parent, (E) as contemplated in the Approved Business Plan or (F) pursuant to any Permitted Replacement Indebtedness Facilities; provided that any indebtedness incurred pursuant to the foregoing clauses (A), (D) and (E) shall not be used to repay, redeem or otherwise retire any outstanding principal amount of indebtedness under any indebtedness facilities specified on Section 9.02(e) of the Company Disclosure Schedule, other than to the extent permitted to be incurred pursuant to Section 6.08; (viii) make any material new capital expenditures, other than (A) in the ordinary course of business, (B) capital expenditures provided for in the Approved Business Plan or (C) other capital expenditures not in excess of $5,000,000 individually or $20,000,000 in the aggregate; (ix) other than with respect to any Legal Action the settlement of which would be fully covered by the Company’s existing insurance policies, settle any material Legal Action before a Governmental Authority, other than settlements in the ordinary course of business that involve only the payment of money damages (A) not in excess of $500,000 individually or $1,000,000 in the aggregate or (B) consistent with the reserves reflected in the Company’s balance sheet at September 30, 2022; (x) except as required under the terms of any Company Plan or Contract in effect on the date hereof (including, for the avoidance of doubt, any Collective Bargaining Agreement), as contemplated by this Agreement or for immaterial actions to mitigate the impact of any Section 280G excise taxes (provided that in no event shall any such action include an agreement to make gross-up payments), (A) materially increase the compensation or benefits of any Company Service Provider, (B) establish, adopt, enter into, terminate, materially amend, or take any action to accelerate payment, vesting, funding or other rights under any Company Plan or any plan, agreement, program, policy, trust, fund, or other arrangement that would be a Company Plan if it were in existence as of the date of this Agreement, or make any contribution to any Company Plan, other than contributions required by Applicable Law, the terms of such Company Plans as in effect on the date hereof, or that are made in the ordinary course of business consistent with past practice, (BC) ~~use~~ partially or completely withdraw from any Multiemployer Plan, or (D) hire or terminate any Key Employee, other than hiring Key Employees to fill existing vacancies or vacancies caused by resignation or termination (with or without cause) after the date hereof of Key Employees, in any case, in the ordinary course of business consistent with past practice; (xi) change the Company’s methods, principles, policies, practices or procedures of accounting, except as required by changes in GAAP or in Regulation S-X under the 1934 Act; (xii) make, change or rescind any material Tax election (except in the ordinary course of business consistent with past practice), change any annual Tax accounting period, adopt or make any material change in its ~~reasonable best efforts to preserve intact~~ method of Tax accounting, file any material Tax Return in ~~all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with~~ a jurisdiction in which neither the Company ~~has~~ nor its Subsidiaries previously filed, file any material amended Tax Returns or claims for material Tax refunds, engage in any voluntary disclosure or similar process with a Taxing Authority with respect to a material Tax, extend or waive the statute of limitations with respect to the assessment of any material Tax (except for automatically granted extensions or waivers), enter into any material closing agreement, settle or compromise any material Tax claim, audit or assessment (except in the ordinary course of business ~~relationships and keep available~~ consistent with past practice), or surrender (to Persons other than the ~~services~~ Company or any of its ~~present officers and key employees and~~ Subsidiaries) or settle any right to claim a material Tax refund, offset or other material reduction in Tax liability, in each case, other than as required by Applicable Law; (Cxiii) ~~use commercially reasonable efforts~~ merge or consolidate with any other Person or adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization; (xiv) terminate, cancel or fail to ~~undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of~~ renew any material insurance coverage maintained by the Company or any of its Subsidiaries ~~shall be required~~ with respect to any of their respective material assets without replacing such coverage with a comparable amount of insurance coverage, unless (A) such coverage is not available on commercially reasonable terms or ~~shall without Parent~~(B) lesser coverage amounts are reasonably appropriate in light of changes to the Company’s ~~or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed~~and its Subsidiaries’ business (including termination of leases in accordance with the terms hereof); (xv) ~~make any payments to its business relationship counterparties, beyond that paid~~ except in the ordinary course of ~~business~~ business, (A) enter into any Contract that would have been a Material Contract if it had been entered into prior to the date of this Agreement or (B) amend or modify in ~~order~~ any material respect (excluding extensions in the ordinary course of business), terminate (excluding any expiration in accordance with its terms) or waive any material right, benefit or remedy under any Material Contract; (xvi) enter into, amend or modify the terms of any Contract with any Person covered under Item 404 of Regulation S-K under the 1933 Act or make any payment to ~~maintain such business relationships. In addition~~ any Person covered under Item 404 of Regulation S-K under the 1933 Act (other than payments, transactions or benefits pursuant to Company Plans made available to Parent prior to the date hereof); (xvii) make any contributions to any Company Plan or Multiemployer Plan subject to Section 302 of ERISA and ~~without limiting~~ Section 412 of the ~~generality~~ Code, except: (i) in the minimum amount necessary to satisfy the requirements of Section 302(a) of ERISA and Section 412(a) of the Code, or (ii) in the minimum amounts required by the Company’s Collective Bargaining Agreements or Section 515 of ERISA; (xviii) amend, modify, supplement or terminate the Exchangeable Notes Indenture or any Capped Call Confirmation or take any action that would result in a change to the Exchange Rate (as defined in the Exchangeable Notes Indenture as in effect on the date hereof) or a Potential Adjustment Event or otherwise an adjustment to the Option Entitlement, Strike Price or Cap Price (each as defined in the Capped Call Confirmations as in effect on the date hereof) (other than as contemplated pursuant to Section 8.09); or (xix) agree, resolve or commit to do any of the foregoing. Parent and Merger Sub acknowledge and agree that: (A) nothing contained in this Agreement shall give Parent or Merger Sub, ~~during~~ directly or indirectly, the ~~Pre-Closing Period, except as (w) expressly required~~ right to control or ~~expressly contemplated by this Agreement~~direct the Company’s operations prior to the Closing, (xB) ~~set forth in Section 5.01 of~~ prior to the ~~Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed)~~Closing, the Company shall ~~not~~exercise, consistent with and subject to the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (C) notwithstanding anything to the contrary set forth in this Agreement, no consent of Parent or Merger Sub shall ~~cause its Subsidiaries not to:~~be required with respect to any matter set forth in this Section 6.01 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any Applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Washington Dennis R), Merger Agreement (Atlas Corp.)

Conduct of the Company. ~~From~~ The Company agrees that between the date of this Agreement ~~until~~ and the ~~Closing or~~ Effective Time or, if earlier, the ~~earlier termination of~~ date, if any, on which this Agreement ~~in accordance with Article 8 (the “Pre-Closing Period”)~~is terminated pursuant to Section 8.01, except (a) as ~~(i) expressly required or expressly contemplated by this Agreement, (ii)~~ set forth in ~~Section 5.01 of the Company Letter~~Schedule 6.01, (~~iii~~b) as required pursuant to or permitted by this Agreement (including Section 6.02 and Section 6.03), (c) as may be required by ~~applicable~~ Applicable Law or any Governmental Authority, or (ivd) as consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (~~such~~ which consent shall not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause ~~each of its~~ the Company Subsidiaries to, (Ai) use commercially reasonable efforts to conduct its ~~business~~ businesses in all material respects in the ordinary course consistent with past practice, (ii) use commercially reasonable efforts to preserve materially intact its current business organization and to preserve in all material respects the relationships of the Company and the Company Subsidiaries with its employees, suppliers, licensors, licensees, lessors, customers and others having business dealings with the Company or any of the Company Subsidiaries, (iii) use commercially reasonable efforts to keep and maintain the assets and properties of the Company and the Company Subsidiaries in accordance with past practice, normal wear and tear excepted, and (iv) use commercially reasonable efforts to comply in all material respects with Applicable Law. Without limiting the generality of the foregoing, except (i) as set forth in Schedule 6.01, (ii) as required pursuant to or permitted by this Agreement (including Section 6.02 and Section 6.03), (iii) as may be required by Applicable Law or (iv) as consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company agrees that between the date of this Agreement and the Effective Time or, if earlier, the date, if any, on which this Agreement is terminated pursuant to Section 8.01, the Company shall not, and shall not permit any of the Company Subsidiaries to: (a) amend the Company Governing Documents or the Governing Documents of any Company Subsidiary (whether by merger, consolidation or otherwise); (b) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof, and including any constructive or deemed dividend or distribution) with respect to the capital stock of the Company, whether payable in cash, stock, property or a combination thereof, in each case that would be outside the ordinary course of business, consistent with past practice; provided, however, that the foregoing shall not restrict (i) issuances pursuant to Company Equity Awards outstanding as of the date hereof, (ii) issuances of Company RSU Awards as set forth on Schedule 6.01(b), (iii) issuances under the ESPP pursuant to Section 2.06(d) as set forth on Schedule 6.01(b), or (iv) dividends or other distributions from wholly owned Company Subsidiaries solely to the Company or another wholly owned Company Subsidiary; (c) issue, sell, grant, adjust, split, combine, reclassify or authorize or propose for issuance any Company Securities or any Equity Interests in the Company Subsidiaries, other than the issuance of shares of Company Common Stock in accordance with the provisions Section 2.06(d); provided, however, that the foregoing shall not restrict (i) issuances pursuant to Company Equity Awards outstanding as of the date hereof, (ii) issuances of Company RSU Awards as set forth on Schedule 6.01(b), or (ii) issuances under the ESPP as set forth on Schedule 6.01(b); (d) adopt or publicly propose a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, recapitalization or other reorganization with respect to the Company or any of the Company Subsidiaries; (e) except (i) as required by the terms of any Company Benefit Plan, agreement or other Contract or Applicable Law in effect on the date of this Agreement, (ii) as set forth on Schedule 6.01(e), (A) increase, by more than 5%, the compensation payable or to become payable, or the material benefits provided or to be provided, to officers, directors or senior employees of the Company, in each case whose annual base compensation exceeds $200,000, (B) grant any officer, director or senior employee of the Company any material increase in severance or termination pay, (C) enter into any new, or amend any existing agreement that grants any officer, director, or senior employee any bonus, severance, change of control or retention payments, (D) grant any new awards under any Company Equity Plan, (E) amend or modify any outstanding award under any Company Equity Plan (except as provided in Article 2), (F) increase the coverage or benefits available under any Company Benefit Plan, except for increases in a manner that does not increase the obligations of the Company or any Company Subsidiaries (whether before or after the Closing Date), (G) enter into any third-party contract with respect to any Company Benefit Plan (including contracts for the provision of services to such Company Benefit Plan, including benefits administration) having a term of greater than one-year that is not terminable on 90 days’ notice or less, (H) make any material determinations or interpretations with respect to any Company Benefit Plan, (I) hire any new officer, director, or senior employee with annual base pay in excess of $200,000, or terminate any officer, director or senior employee with annual base pay in excess of $200,000 other than for cause, (J) implement or announce any material reduction in labor force or mass layoffs, furlough, reduction to terms and conditions of employment or other event affecting in whole or in part any site of employment, facility, operating unit or employee that would result in liability of the Company or any Company Subsidiary under the WARN Act, (K) waive or release any confidentiality, non-competition, non-solicitation, non-disclosure, non-disparagement or other restrictive covenant obligation of any current or former employee, independent contractor or other service provider of the Company or any Company Subsidiary, or (L) establish, adopt or enter into any collective bargaining agreement or Company Benefit Plan; provided, however, the foregoing clauses shall not restrict the Company from entering into or making available to newly hired employees (or to existing employees in the context of promotions), in each case, in the ordinary course, plans, agreements, benefits and compensation arrangements (including grants under any Company Benefit Plan); (f) acquire any business or capital stock of any Person or division thereof, whether in whole or in part (and whether by purchase of stock, purchase of assets, merger, consolidation, or otherwise); (g) incorporate, establish, form or otherwise create any legal entity (including any Subsidiary) or joint venture; (h) acquire any material business line, division or similar material asset, whether in whole or in part (and whether by sale of stock, sale of assets, merger, consolidation, or otherwise), enter into any new line of business, or materially change, abandon or discontinue any existing line of business; provided, however, that industry sectors in which the Company’s or any of the Company Subsidiaries’ advertising customers operate shall not, in themselves, be deemed the Company’s or any of the Company Subsidiaries’ lines of business; (i) make or incur any capital expenditures or incur any obligations or liabilities in respect thereof (including, for the avoidance of doubt, costs and expenses for property, plant and equipment and any related labor costs) that exceed $550,000, individually or in the aggregate, in any calendar month or $1,500,000 in any rolling three-month period; (j) materially amend, or modify or consent to the termination (excluding any expiration in accordance with its terms) of any Material Contract or amend, waive, modify or consent to the termination (excluding any expiration in accordance with its terms) of the Company’s or any Company Subsidiary’s material rights thereunder, in each case in a manner that is adverse to the Company or any Company Subsidiary, taken as a whole, except in the ordinary course of business; (k) other than in the ordinary course of business consistent with past practice, sell, transfer, lease, offer to sell, abandon or otherwise dispose of any of its tangible properties or assets (other than sales of inventory or obsolete assets); (l) settle or compromise any pending or threatened Proceeding relating to the Company or any Company Subsidiary other than settlements or compromises for pending or threatened Proceedings solely for monetary damages without admission of fault or wrongdoing where the amount paid (net of insurance proceeds receivable) does not exceed $200,000 individually or $300,000 in the aggregate; (m) subject the Leased Premises, or any of the other properties or assets (whether tangible or intangible) of the Company or any of the Company Subsidiaries, to any Lien, except for Permitted Liens, or otherwise (i) lease, sublease, license or convey any Leased Premises (or any portion of any Leased Premises) to any Person or (ii) pledge, mortgage, deed in trust, collaterally assign or otherwise create a Lien, except for Permitted Liens, on any interest in Leased Premises; (n) disclose any material Trade Secrets of the Company or any Company Subsidiary to any other Person (other than (i) in the ordinary course of business to a Person bound by adequate confidentiality obligations, (ii) during the Go-Shop Period to a third party bound by adequate confidentiality obligations, or (iii) to any Go-Shop Party or as permitted by Section 6.02(c)); (o) make any material change to any of the accounting methods, policies, principles or practices, or revalue any properties or assets in any material respects (including writing off notes or accounts receivable other than in the ordinary course of business), except in each case, as required by GAAP or Regulation S-X promulgated under the Exchange Act; (p) (i) incur or assume any Indebtedness in the principal amount in excess of $300,000, individually or in the aggregate; or (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any such Indebtedness of any other Person that is not a wholly owned Subsidiary of the Company; (q) make any loans or advances to any Person or purchase of debt securities of any Person, other than any intercompany loan or advance among any of the Company or any of the Company Subsidiaries; (r) forgive, settle, cancel, compromise, waive, assign or release of any right or claim, including any Indebtedness, which have an individual value in excess of $200,000 or an aggregate value in excess of $300,000; (s) amend, fail to maintain, cancel or reduce or permit to lapse, without renewal or replacement on substantially the same or better material terms, any material insurance policies of the Company or any Company Subsidiary; (t) fail to maintain, or allow to lapse, cancel or abandon (including by failure to pay the required fees in any jurisdiction) any material Company Intellectual Property; (u) grant any rights to, sell, transfer or otherwise make available, pledge, encumber or otherwise dispose any Intellectual Property, other than non-exclusive licenses granted in the ordinary course of business consistent with past practice; (v) engage in any transaction with, or enter into any agreement, arrangement or understanding with any Affiliate of the Company or other Person covered by Item 404 of Regulation S-K promulgated under the Exchange Act that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated under the Exchange Act; (w) (i) make, revoke or change any material Tax election, (ii) change any annual Tax accounting period, (iii) adopt or change any material method of Tax accounting, (iv) prepare any Tax Return in a manner which is not consistent with the past practice of the Company or such Subsidiary, as applicable, with respect to the treatment of items on such Tax Return in all material respects, (v) file any material amendment to any Tax Return, (vi) incur any material liability for Taxes other than in the ordinary course of business consistent with past practice, (Bvii) ~~use its reasonable best efforts~~ enter into any closing agreement with respect to ~~preserve intact in all material respects its business organization and material business relationships with suppliers~~Taxes or Tax sharing, ~~vendors, Governmental Authorities, Customers and~~ allocation or indemnity Contract or other ~~Persons with which~~ arrangement or agreement (other than a Contract solely between or among the Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 or any of the Company ~~Letter~~Subsidiaries or any commercial Contract entered into in the ordinary course of business and not primarily related to Taxes), (viii) surrender any right to claim a material refund, credit or rebate of Taxes or (ix) settle or compromise any material Tax claim, audit, litigation, assessment or other Proceeding with respect to Taxes; ~~provided~~or (x) make a legally binding commitment, ~~that none~~ agreement or offer, resolve or authorize to take any of the foregoing actions. Notwithstanding the foregoing, (x) nothing contained in this Agreement shall give to Parent or Merger Sub, directly or indirectly, rights to control or direct the operations of the Company or any of ~~its~~ the Company Subsidiaries prior to the Effective Time and (y) prior to the Effective Time, the Company and the Company Subsidiaries shall ~~be required to (or shall without Parent’s or Buyer’s prior consent~~exercise, ~~not to be unreasonably withheld~~consistent with the terms and conditions of this Agreement, ~~conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationships~~complete control and supervision over their operations. In ~~addition to and without limiting the generality of~~ addition, notwithstanding the foregoing, ~~during~~ nothing in this Section 6.01 shall restrict the ~~Pre-Closing Period, except as (w) expressly required~~ Company or ~~expressly contemplated by this Agreement, (x) set forth in Section 5.01~~ any of the Company ~~Letter~~Subsidiaries from, ~~(y) required by applicable Law~~ or ~~(z) consented to~~ require the consent of Parent prior to, engaging in ~~advance in writing by Parent~~ any transaction or ~~Buyer (such consent not to be unreasonably withheld, conditioned or delayed),~~ entering into any agreement exclusively among the Company ~~shall not,~~ and ~~shall cause~~ one or more of its ~~Subsidiaries not to:~~wholly-owned Subsidiaries.

Appears in 2 contracts

Samples: Merger Agreement (AdTheorent Holding Company, Inc.), Merger Agreement (AdTheorent Holding Company, Inc.)

Conduct of the Company. ~~From the date of this Agreement until the Closing or the earlier termination of this Agreement in accordance with Article 8~~ (~~the “Pre-Closing Period”), except as~~ a) Except (i) ~~expressly required~~ to the extent compelled or ~~expressly contemplated by this Agreement, (ii) set forth in Section 5.01 of the Company Letter, (iii)~~ required by applicable Law or Order, (ii) as may be necessary or commercially reasonable in response to a Contagion Event or Contagion Event Measures (provided, that Seller shall reasonably consult with Buyer to the extent reasonably practicable prior to causing the Company or its Subsidiaries to undertake any action in response to a Contagion Event or Contagion Event Measures), (iii) as otherwise expressly permitted or contemplated by this Agreement or any Other Transaction Document, (iv) in connection with the performance or exercise of any right or obligation pursuant to any existing Contract, (v) as set forth in Section ‎6.1 of the Company Disclosure Schedule, or (vi) as consented to in advance in writing by ~~Parent or~~ Buyer (~~such~~ which consent shall not to be unreasonably withheld, conditioned or delayed, and provided that the failure of Buyer to respond to such a request for consent notified to [Redacted] (email: [Redacted]) and [Redacted] (email: [Redacted]) within five Business Days thereafter shall be deemed to constitute consent), during the period from the date hereof to the Closing Date, Seller shall cause the Company ~~shall~~and its Subsidiaries to conduct its business and operations in the ordinary course consistent with past practice and (x) use commercially reasonable efforts to (1) maintain its assets and properties and to preserve its current relationships with its Advisory Clients, employees and others having business dealings with it, in each case, in all material respects and (2) make reasonable data backups in the information technology systems of the business, if applicable, (y) maintain its books and records in the ordinary course consistent with past practice in all material respects, and ~~shall cause each~~ (z) use commercially reasonable efforts to preserve the goodwill and ongoing operations of ~~its Subsidiaries to, (A) conduct~~ its business in all material ~~respects~~ respects; provided, however, that (A) no action by Seller, the Company or any of its Subsidiaries with respect to any specific exception permitted by any provision of Section ‎6.1(b) shall be deemed a breach of this Section ‎6.1(a) or any other provision of ‎Section ‎6.1(b) that may apply and (B) the failure of Seller, the Company or any of its Subsidiaries to take any action prohibited by Section ‎6.1(b) shall not be deemed a breach of this Section ‎6.1(a). (b) Without limiting the generality of the foregoing, except (i) to the extent compelled or required by applicable Law or Order, (ii) as may be necessary or commercially reasonable in response to a Contagion Event or Contagion Event Measures (provided, that Seller shall reasonably consult with Buyer to the extent reasonably practicable prior to causing the Company or its Subsidiaries to undertake any action in response to a Contagion Event or Contagion Event Measures), (iii) as otherwise expressly permitted or contemplated by this Agreement or any Other Transaction Document, (iv) in connection with the performance or exercise of any right or obligation pursuant to any existing Contract, (v) as set forth in Section ‎6.1 of the Company Disclosure Schedule, or (vi) as consented to in advance in writing by Buyer (which consent (other than in the case of clauses (i), (ii), (iii) or (ix) below) shall not be unreasonably withheld, conditioned or delayed, and provided that the failure of Buyer to respond to such a request for consent notified to [Redacted] (email: [Redacted]) and [Redacted] (email: [Redacted]) within five Business Days thereafter shall be deemed to constitute consent), during the period from the date hereof to the Closing Date, Seller shall cause the Company and its Subsidiaries not to: (i) modify or amend the Constituent Documents of the Company or any of its Subsidiaries in any material respect; (ii) issue, deliver, sell, or authorize the issuance, delivery or sale of, any Equity Securities of the Company or any of its Subsidiaries; (iii) split, combine, subdivide, redeem, repurchase, or reclassify, or purchase or otherwise acquire any Equity Securities of the Company or any of its Subsidiaries; (iv) declare or pay any dividend or make any distribution in respect of any of its Equity Securities other than (A) to the Company or any of its Subsidiaries and (B) dividends and distributions in cash; (v) incur any indebtedness for borrowed money other than (A) in an amount not exceeding $500,000 in the aggregate and (B) indebtedness that will be repaid prior to or on the Closing Date, or forgive any indebtedness for borrowed money; (vi) enter into any Contract that purports to limit, curtail or restrict the kinds of businesses which it or its Subsidiaries may conduct, or the Persons with whom it or its Affiliates can compete, in each case in any material respect; (vii) enter into any Contract, with respect to, or consummate, any merger or business combination, or the acquisition of any business of any Person by merger, consolidation, or Equity Security or asset purchase; (viii) divest, sell, transfer or otherwise dispose of, or encumber any material asset of the Company or its Subsidiaries, other than in the ordinary course of business; (ix) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of the Company; (x) other than (w) as required by a Plan set forth on Section ‎3.16(a) of the Company Disclosure Schedule in effect on the date of this Agreement, (x) as explicitly contemplated hereunder, (y) for actions the entire cost of which is borne solely by Seller and which are not recurring obligations to be maintained or provided following the Closing and which do not impact the nature or scope of Buyer’s obligations under Section ‎6.9 of this Agreement, and (z) with respect to any Retained Employee (that is, on or after the date upon which Buyer has consented in writing to such individual being classified as a Retained Employee) or Expat Employee, (A) increase the base salary, base wage rate, or amount of any other material compensation element of any employee or other individual service provider of the Company or any Subsidiary with a base salary or base wage rate of at least $200,000 (except for annual merit-based increases of 2% or less in the ordinary course of business consistent with past practice), (B) use its reasonable best efforts to preserve intact in all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and accelerate the vesting or payment of any compensation or benefits of any employee or other ~~Persons with which~~ individual service provider of the Company ~~has material business relationships and keep available the services of its present officers and key employees and~~ or any Subsidiary, (C) ~~use commercially reasonable efforts~~ enter into, amend or terminate any Plan (or any plan, program, agreement or arrangement that would be a Plan if in effect on the date hereof) or grant, amend or terminate any awards thereunder (including granting of any awards under the Amundi US, Inc. Amended and Restated Special Award Plan or admitting new participants into the Pioneer Group, Inc. Executive Supplemental Retirement Benefit Plan A), other than ordinary course and non-substantial changes to ~~undertake~~ any Plan that is a health, retirement or welfare plan in connection with annual renewals that do not materially increase the ~~actions enumerated in Section 5.01-1~~ cost of maintaining or sponsoring such Plan, (D) fund any payments or benefits that are payable or to be provided under any Plan, (E) terminate without “cause” any employee of the Company ~~Letter; provided~~or any Subsidiary with a base salary or base wage rate of at least $200,000, (F) hire or engage any new employee or other individual service provider of the Company or any Subsidiary, other than to (1) fill positions open as of the date hereof as listed on Section ‎6.1(b)(x) of the Company Disclosure Schedule or (2) replace vacant positions following departures, in each case of the Company or any Subsidiary, subject to prior consultation with the Buyer and provided that ~~none~~ the number of employees or other individual service providers as at the Closing Date should not be higher than the number of employees as at the date hereof, (G) make or forgive any loan to any present or former employee or other individual service provider of the Company or any Subsidiary (other than advancement of expenses in the ordinary course of business consistent with past practices), (H) waive or release any non-competition, non-solicitation, non-interference, non-disparagement or similar restrictive covenant obligation of any employee of the Company or any Subsidiary with a base salary or base wage rate of $200,000, (I) implement or announce any employee layoffs, furloughs, reductions in force, reductions in compensation, hours or benefits, work schedule changes or similar actions that would reasonably be expected to implicate the WARN or any similar state law, (J) enter into, amend or terminate any collective bargaining agreement or other agreement with a labor union or labor organization, or recognize or certify any such entity or (K) cause any employee or individual independent contractor of the Company or any of its Subsidiaries ~~shall~~ (other than the Expat Employees) to transfer employment or services to Seller or one of its Affiliates (other than the Company or any of its Subsidiaries), such that they would no longer be employed or engaged by the Company or any of its Subsidiaries at the Closing Date (any such employee or individual independent contractor whose employment or services is so transferred prior to the Closing Date with the written consent of Buyer, a “Retained Employee”); (xi) make, change, or revoke any material election in respect of Taxes, settle or compromise any material Tax liability, amend any material Tax Return, consent to any extension (except extensions of time that are automatically granted and applied for in the ordinary course of business) or waiver of the statute of limitation period applicable to any material Tax claim or assessment, change an annual accounting period or change (or make a request to any Taxing Authority to change) any aspect of its method of accounting for Tax purposes, file or surrender a claim for any refund of material Taxes, enter into any Tax sharing, closing, or similar agreement in respect of any Taxes, or obtain or request any Tax ruling, in each case, to the extent such action would have the effect of increasing the Tax liability of the Company or its Subsidiaries for any Tax period ending on or after the Closing Date; (xii) change its accounting policies or procedures except to the extent required to conform with GAAP; (~~or shall without Parent’s or Buyer’s prior consent~~xiii) voluntarily divest itself of management of the Company Funds, ~~not to be unreasonably withheld~~in each case other than in the ordinary course of business, ~~conditioned or delayed~~as determined by a Company Adviser in the exercise of its fiduciary duties; (xiv) change its fiscal year; (xv) make any ~~payments to~~ capital contribution to, or investment in, any Person (other than the Company and its ~~business relationship counterparties~~Subsidiaries) in any amount in excess of $1,000,000, ~~beyond~~ other than in the ordinary course of business; (xvi) amend, assign, renew, terminate, waive any material rights under or cancel any Company Material Contract or enter into any new agreement that ~~paid~~ would have been a Company Material Contract had it been in effect as of the date hereof, in each case other than (A) in the ordinary course of business or (B) the expiration, automatic extension or renewal of any Company Material Contract in accordance with its terms, if such Company Material Contract as so renewed or extended will (i) expire or be terminable for convenience by the Company within one year following the Closing Date without penalty or (ii) will not require an aggregate expenditure by the Company or its Subsidiaries exceeding $250,000 after the Closing; (xvii) commence or settle any Action against or involving the Company or any of its Subsidiaries (provided, that this clause ‎(xvii) shall not apply to Tax matters, which are addressed in clause ‎(xi) above); (xviii) expend, or commit to expend, funds for capital expenditures of more than $500,000 in the aggregate; (xix) enter into a new line of business, including entering into any new investment strategy or asset class or any line of business related to investment management services; (xx) dissolve or terminate any Company Fund that is a Company Direct Client or recommend to the board of directors or relevant governing body of any Company Direct Client the dissolution or termination of such Company Direct Client, other than (A) in accordance with the Constituent Documents of such Company Direct Client or applicable Law, (B) in order to ~~maintain~~ comply with its fiduciary duties (or that of its Representatives) under applicable Law, (C) in connection with the withdrawal of all shareholders from such Company Direct Client, or (D) in the ordinary course of business; (xxi) create a new Subsidiary of the Company; (xxii) (A) sell, assign, transfer, license (other than nonexclusive licenses of Intellectual Property granted to customers in the ordinary course of business ~~relationships. In addition~~ consistent with past practice), abandon, allow to lapse, allow to be dedicated to the public domain, or otherwise dispose of any material Owned Intellectual Property (including any Pioneer Marks), or (B) disclose any material Trade Secrets included in the Owned Intellectual Property to any third party, other than pursuant to a valid and ~~without limiting~~ binding confidentiality agreement or other binding obligation of confidentiality to the ~~generality~~ Company or its Subsidiaries; (xxiii) with respect to the Buyer Common Stock and Buyer Preferred Stock to be issued pursuant to this Agreement (whether at the Closing or at any time thereafter), engage in any hedging or derivative transactions or other swap or arrangement which transfers to another Person, in whole or in part, any of the economic consequences of ownership of any such Buyer Common Stock or Buyer Preferred Stock; or (xxiv) authorize, agree, resolve or consent to any of the foregoing. (c) Nothing contained in this Agreement shall give to Buyer, ~~during~~ directly or indirectly, rights to control or direct the ~~Pre-~~operations of the Company prior to the Closing ~~Period~~Date. Prior to the Closing Date, ~~except as (w) expressly required or expressly contemplated by~~ Seller shall exercise, consistent with the terms and conditions of this Agreement, ~~(x)~~ complete control and supervision of the Company’s operations. Notwithstanding anything to the contrary in this Agreement, no consent of Buyer shall be required with respect to any matter set forth in this Section ~~5.01~~ ‎6.1 or elsewhere in this Agreement to the extent that the requirement of ~~the Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (~~such consent ~~not to be unreasonably withheld, conditioned~~ would violate or ~~delayed), the Company shall not, and shall cause its Subsidiaries not to:~~conflict with applicable Law.

Appears in 2 contracts

Samples: Contribution Agreement (Victory Capital Holdings, Inc.), Contribution Agreement (Victory Capital Holdings, Inc.)

Conduct of the Company. From the date of this Agreement until the ~~Closing or~~ earlier to occur of the ~~earlier~~ Effective Time and the termination of this Agreement in accordance with Article ~~8 (the “Pre-Closing Period”)~~IX, except as ~~(i)~~ otherwise expressly ~~required~~ permitted or expressly contemplated by this Agreement, ~~(ii)~~ as set forth in Section ~~5.01~~ 5.1 of the Company Disclosure Letter, ~~(iii) required by applicable Law or (iv)~~ as consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed)) or as required by applicable Law, the Company shall, and shall cause each of its Subsidiaries to, (Ai) conduct its business in all material respects in the ordinary course of business consistent with past ~~practice~~practices and use reasonable best efforts to cause each of the Company Sharing Companies and their respective Subsidiaries to conduct its business in the ordinary course of business consistent with past practices, (Bii) use reasonable best efforts to maintain the Company Station Licenses and the rights of it, the Company Sharing Companies and their respective Subsidiaries thereunder and (iii) use its reasonable best efforts to preserve intact in all material respects its current business ~~organization~~ organization, ongoing businesses and ~~material business~~ significant relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of the Company or any of its Subsidiaries shall be required to (or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationshipsthird parties. ~~In addition to and without~~ Without limiting the generality of the foregoing, ~~during~~ from the ~~Pre-Closing Period~~date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as ~~(w)~~ otherwise expressly ~~required~~ permitted or ~~expressly~~ contemplated by this Agreement, ~~(x)~~ as set forth in Section ~~5.01~~ 5.1 of the Company Disclosure Letter, ~~(y) required by applicable Law or (z)~~ as consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed)) or as required by applicable Law, the Company shall not, ~~and~~ nor shall ~~cause~~ it permit any of its Subsidiaries ~~not~~ to: (a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of the Company that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby); (b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Company to the Company or any direct or indirect wholly owned Subsidiary of the Company or (y) quarterly dividends made by Company in an amount not to exceed $0.25 per share per quarter (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify any of its capital stock or other Company Securities or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of capital stock of the Company or (iii) purchase, redeem or otherwise acquire any shares of capital stock of the Company, except, in the case of this clause (iii), for (A) such purchases, redemptions and other acquisitions solely between the Company and a wholly owned Subsidiary thereof, or between a wholly owned Subsidiary of the Company and another wholly owned Subsidiary of the Company, (B) redemptions, repurchases or acquisitions in connection with the payment of the exercise price of Company Stock Options with Company Stock and to satisfy Tax withholding obligations in connection with the exercise of Company Stock Options or Company Warrants or the vesting or settlement of Company RSUs, Company PSUs (including Company Supplemental PSUs) and Company DSUs, that are outstanding on the date of this Agreement or subsequently granted to the extent permitted by the terms of this Agreement, in each case in accordance with the applicable terms thereof, and (C) acquisitions of shares of Class A Stock as a result of the conversion of shares of Class B Stock into shares of Class A Stock or shares of Class B Stock as a result of the conversion of shares of Class A Stock into shares of Class B Stock; (c) (i) issue, deliver, pledge, sell, or otherwise encumber to any Lien (other than a Permitted Lien) or authorize the issuance, delivery, sale, or encumbrance to any Lien (other than a Permitted Lien) of any shares of any Company Securities or Company Subsidiary Securities other than (w) the issuance of any shares of Company Stock upon the exercise of Company Stock Options or Company Warrants or the settlement of Company RSUs, Company PSUs (including Company Supplemental PSUs) and Company DSUs that are outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement, (x) if required by an employment agreement with an Employee that is then in effect, and provided or made available to Parent prior to the date hereof or approved by Parent under this Section 5.1, (y) issuances of securities of the Company’s Subsidiaries to the Company or to wholly owned Subsidiaries of the Company and (z) issuances pursuant to the conversion of shares of Class A Stock into shares of Class B Stock or shares of Class B Stock into shares of Class A Stock or (ii) amend any term of any Company Security (in each case, whether by merger, consolidation or otherwise); provided, in each case, that the Company shall not make any grants, awards or issuances to the extent that such grants, awards or issuances would cause the Company or any of its Subsidiaries to be in violation of the Communications Act or the FCC Rules; (d) make or commit to any capital expenditures in excess of $500,000 individually or $2.5 million in the aggregate, except pursuant to the Company’s 2017 planned capital expenditures budget of $86 million; (e) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof with a value or purchase price (including all potentially payable “earn-out” consideration or any other obligation to potentially pay consideration in the future) in excess of $2.5 million in the aggregate, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement that were publicly announced prior to the date of this Agreement or otherwise made available to Parent prior to the date hereof and (ii) purchases of assets in the ordinary course of business (for the avoidance of doubt, “ordinary course of business” shall include acquisitions of programing and broadcast rights but shall not include acquisitions of broadcast television stations); (f) sell, assign, license, lease, transfer, abandon or otherwise dispose of, or create any Lien on (other than any Permitted Lien), or otherwise dispose of , any of the Company’s or its Subsidiaries’ assets, other than (i) such sales, assignments, licenses, leases, transfers, Liens or other dispositions that are in the ordinary course of business and are not material to the business of the Company and its Subsidiaries, (ii) as listed on Section 5.1(f) of the Company Disclosure Letter or (iii) to comply with, and in accordance with, Section 7.1; (g) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness and borrowings in the ordinary course of business consistent with past practice under the Company’s existing revolving credit facility; (h) make any loans, advances or capital contributions to, or investments in, any Person, other than the Company or its wholly owned Subsidiaries and ordinary course advancements and reimbursements to Employees; (i) other than in the ordinary course of business consistent with past practices (including renewals consistent with the terms thereof), (w) amend or modify in any material respect or terminate (excluding terminations or renewals upon expiration of the term thereof in accordance with the terms thereof) any Company Material Contract, (x) enter into any Contract that would constitute a Company Material Contract if in effect on the date hereof, (y) waive, release or assign any material rights, claims or benefits, or grant any material consent, under any Company Material Contract, and (z) consent to the termination of the Company’s (or of the applicable Subsidiary’s) rights thereunder, except for the termination of any Company Material Contract pursuant to the terms thereof; provided, that, in no event shall the Company take any action covered by this subsection (including in the ordinary course of business consistent with past practices, and including renewals consistent with the terms thereof) (i) with respect to any Company Material Contract (A) relating to cable or satellite transmission or retransmission with MVPDs, (B) that is or would be a network affiliation agreement, (C) that relates to the receiving or obtaining of Programming Rights by the Company or any of its Subsidiaries, or (D) that is or would be a Company Sharing Agreement.; (j) except as required by applicable Law or except as required by the existing terms of any Company Plan or a Collective Bargaining Agreement in effect on the date hereof: (i) grant or increase any change-in-control, severance, retention, or termination pay to any employee, officer, director, or independent contractor of the Company or any of its Subsidiaries, or enter into or amend any employment, change-in-control, severance, retention or termination agreement with any such individual, (ii) establish, adopt, amend or terminate any Company Plan (including any plan, agreement or arrangement that would be a Company Plan if in effect on the date hereof), including establishing, adopting or amending any incentive or bonus plan or program relating to performance periods beginning on or after the date hereof, (iii) establish, adopt, amend or terminate any collective bargaining agreement, (iv) take any action to accelerate the vesting or payment, or fund or secure the payment, of compensation (including any equity-based compensation) or benefits under a Company Plan, (v) loan or advance any money or any other property to any current or former director, officer, employee, or independent contractor of the Company or any Subsidiary if not permitted by Section 5.1(h), (vi) grant any increase in compensation, bonus or other payments or benefits payable to any officer, director, employee or independent consultant of the Company or any of its Subsidiaries, except for (A) increases in base salaries or wages of less than 3.5% of base salary or wages on an individual basis that are made in the ordinary course consistent with past practice to any current employee, officer or director with an annual base salary of less than $200,000 or (B) increases in compensation, bonus or other payments or benefits in connection with a promotion or increase in responsibilities consistent with past practices or (vii) hire (or terminate other than for cause) any employees with an aggregate annual base compensation above $200,000; (k) materially change the Company’s methods, principles or practices of financial accounting or annual accounting period, except as required by GAAP, Regulation S-X of the Exchange Act (or any interpretation thereof), or by any Governmental Authority or applicable Law; (l) (i) materially change any method of Tax accounting, (ii) make or change any material election with respect to Taxes, (iii) amend any federal income Tax Return in a manner that would materially increase the Taxes of the Company and its Subsidiaries, (iv) settle, or offer, propose or agree to settle, any claim or deficiency in respect of Taxes in excess of $1,000,000, excluding for these purposes any agreement or settlement relating to a Tax item to the extent that such agreement or settlement does not exceed the reserves for such Tax item as reflected on the Company Balance Sheet, (v) enter into any closing agreement within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to a material amount of Taxes, (vi) surrender any right to a material refund of Taxes, (vii) consent to any extension or waiver of the limitation period applicable to any audit, assessment or claim for a material amount of income Taxes except in the ordinary course of business consistent with past practice or (viii) fail to timely pay any material Tax or file any material Tax Return when due; (m) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of the Company or any material Subsidiary of the Company; (n) modify or accede to the modification of any of the Company Station Licenses if doing so is reasonably likely to be materially adverse to the interests of Parent and its Subsidiaries after giving effect to the Merger in the operation of television broadcast stations or fail to provide Parent with a copy of (and a reasonable opportunity to review and comment on) any application for the modification of any of the Company Station Licenses reasonably in advance of filing with the FCC, except, in each case, as required by Law or as required in connection with the broadcast incentive auction, reassignment and repack conducted by the FCC pursuant to Section 4603 of the Middle Class Tax Relief and Job Creation Act (Pub. L. No. 112- 96, §6403, 000 Xxxx. 000, 225-230 (2012)) (the “Incentive Auction & Repack”); (o) apply to the FCC for any construction permit that would restrict in any material respect the Company Stations’ operations or make any material change in the assets of the Company Stations that is not in the ordinary course of business, except as may be necessary or advisable to maintain or continue effective transmission of the Company Stations’ signals within their respective service areas as of the date hereof, except, in each case as required by Law or as required in connection with the Incentive Auction & Repack; (p) settle, offer or propose to settle any Proceeding involving or against the Company, any Company Sharing Company or any of their respective Subsidiaries in excess of $2 million (excluding, for the avoidance of doubt, amounts paid by insurance and other amounts not paid out-of-pocket by the Company) or otherwise discharge, settle or satisfy any Proceeding which discharge, settlement or satisfaction would reasonably be expected to materially limit or restrict the operation of the business of the Company, any Company Sharing Company or any of their respective Subsidiaries (and after the Closing, Parent or any of its Subsidiaries); (q) fail to timely make any retransmission consent election with any MVPDs that reported more than 50,000 paid subscribers to the Company or any of its Subsidiaries for March 2017 located in or serving the Company Stations’ Markets; or (r) agree, resolve or commit to do any of the foregoing. Parent and Merger Sub acknowledge and agree that: (i) nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s operations prior to the Closing, (ii) prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Parent or Merger Sub shall be required with respect to any matter set forth in this Section 5.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.

Appears in 1 contract

Samples: Merger Agreement (Tribune Media Co)

Conduct of the Company. ~~From~~ 6.1.1 During the period commencing on the date of this Agreement ~~until the Closing or~~ and ending on the earlier of the termination of this Agreement ~~in accordance with Article 8~~ and the Effective Time (the “Pre-Closing Period”), except as for matters (i) ~~expressly~~ required ~~or expressly contemplated~~ by ~~this Agreement~~Applicable Law, (ii) ~~set forth in Section 5.01~~ undertaken with the prior written consent of ~~the Company Letter~~Parent and US HoldCo, ~~(iii) required by applicable Law or (iv) consented to in advance in writing by Parent or Buyer (such consent~~ which shall not to be unreasonably withheld, conditioned or delayed), or (iii) expressly required by this Agreement, the Company shall, and shall cause each of its Subsidiaries to, ~~(A)~~ conduct ~~its business~~ in all material respects its business in the ordinary course of business, consistent with past practice, and use its reasonable best efforts to (A) maintain and preserve intact in all material respects its business organization, (B) keep available the services of Company Employees believed to be critical to the Company’s business, (C) maintain in effect all of its material Permits, and (D) maintain and preserve satisfactory relationships with material customers, suppliers and others having material business relationships with the Company. 6.1.2 Without limiting the generality of the foregoing in Section ‎6.1.1, during the Pre-Closing Period, the Company shall, and shall cause each of its Subsidiaries to, make such capital expenditures in accordance in all material respects with the Company’s capital expenditure plan for 2017 provided to Parent prior to the date of this Agreement and set forth in Section ‎6.1.2 of the Company Disclosure Schedules (the “Capital Expenditure Budget”); provided, however, that the Company may make adjustments from the Capital Expenditure Budget with the prior written consent of Parent, which shall not be unreasonably withheld, conditioned or delayed. 6.1.3 Without limiting the generality of the foregoing in Section ‎6.1.1, during the Pre-Closing Period, except (i) as may be required by Applicable Law, (ii) with the prior written consent of Parent and US HoldCo, which shall not be unreasonably withheld, conditioned or delayed, (iii) as may be expressly contemplated or required by this Agreement, or (iv) as set forth in Section 6.1.3 of the Company Disclosure Schedules, the Company shall not, and shall not permit any of its Subsidiaries to: (i) amend the Company Organizational Documents or the Company Subsidiary Organizational Documents (including by merger, consolidation or otherwise), or otherwise take any action to exempt any Person from any provision of the Company Organizational Documents or the Company Subsidiary Organizational Documents; (ii) exempt any Person (other than Parent and its Affiliates) from the provisions of Section 203 of the DGCL or any other “moratorium,” “control share acquisition,” “business combination,” “fair price” or other form of anti-takeover law or regulation; (iii) split, combine, subdivide, reclassify, redeem, purchase or otherwise acquire any shares of its capital stock or other equity or voting interests; (iv) amend any term of any Company Security or any security of any of its Subsidiaries (in each case, including by merger, consolidation or otherwise); (v) make, declare, accrue, set aside or pay any dividend or make any other distribution on (whether in cash, stock, property or otherwise), or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock, or any other securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (A) dividends paid by any Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company (to the extent such dividends would not result in (i) a material Tax liability to the Company or any Subsidiary of the Company or (ii) a material Tax liability that has not previously been accrued in the Company’s financial statements pursuant to APB 23 or similar guidance issued by the Financial Standards Accounting Board), (B) the acceptance of shares of Company Common Stock as payment for the exercise price of Company Stock Options or for withholding Taxes incurred in connection with the exercise of Company Stock Options or the vesting or settlement of Company Stock Awards outstanding as of the date hereof or granted after the date hereof in compliance with this Agreement, in each case in accordance with past practice and the terms of the applicable award Contracts, or (C) as contemplated in Section ‎6.12 in relation to the Convertible Notes and the Senior Notes); (vi) grant or amend any Company Stock Awards or other equity or equity-based awards or interests, or grant any Person any right to acquire any shares of its capital stock or other equity or voting interests; (vii) issue, sell, grant, pledge or otherwise dispose of or permit to become outstanding any additional shares of its capital stock or other equity or voting interests or securities convertible or exchangeable into, or exercisable for, any shares of its capital stock or other equity or voting interests or any options, warrants, or other rights of any kind to acquire any shares of its capital stock or other equity or voting interests, except pursuant to the exercise of Company Stock Options or the settlement of Company Stock Awards outstanding as of the date hereof or granted after the date hereof in compliance with this Agreement, in each case in accordance with their terms, or enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock or equity interests; (viii) adopt any plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, of the Company or permit any of its Subsidiaries to do so, or file a petition in bankruptcy under any provisions of Applicable Law on behalf of the Company or any of its Subsidiaries or consent to the filing of any bankruptcy petition against any the Company or permit any of its Subsidiaries to do so under any similar Applicable Law; (ix) create any Subsidiary of the Company or any of its Subsidiaries; (x) other than renewals of existing letters of credit, redeem, repurchase, prepay, defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise) (in each case, other than the repayment or prepayment of any Indebtedness owed by any Subsidiary of the Company to the Company or any other wholly owned Subsidiary of the Company); (xi) grant or suffer to exist any Liens on any material properties or assets, tangible or intangible, of the Company or any of its Subsidiaries, other than Permitted Liens; (xii) enter into (i) any platinum or palladium hedging transactions or (ii) any other hedging transactions other than in the ordinary course of business consistent with past practice; (xiii) make any capital investment in, loan or advance to, or make or forgive any loan to, any other Person, other than the making of any loans or advances (i) by any wholly owned Subsidiary of the Company to the Company or any other wholly owned Subsidiary of the Company, (ii) to distributors or suppliers consistent in all material respects with the business plan provided to Parent prior to the date of this Agreement not in excess of $1,000,000 in the case of any individual distributor or supplier and $5,000,000 in the aggregate, or (iii) customary expenses and travel advances to employees in the ordinary course of business consistent with past practice; (xiv) other than in the ordinary course of business consistent with past practice or in accordance with any Contract in effect on the date hereof, (i) sell, transfer, lease, mortgage, encumber or otherwise dispose of, in a single transaction or series of related transactions, any of its material properties or assets to any Person other than to the Company or a wholly owned Subsidiary of the Company and other than sales of inventory or sales of obsolete or unneeded equipment in the ordinary course of business consistent with past practice or (ii) cancel, release or assign any material Indebtedness of any such Person owed to it or any claims held by it against any such Person, other than a wholly owned Subsidiary; (xv) acquire (whether by merger or consolidation, acquisition of stock or assets or by formation of a joint venture or otherwise) any other Person or business or any material assets, deposits or properties of any other Person other than in the ordinary course of business or for consideration not in excess of $1,000,000 individually or $5,000,000 in the aggregate or (ii) make any material investment in any other Person either by purchase of stock or securities or contributions to capital; (xvi) make or authorize any capital expenditures other than (i) capital expenditures expressly provided for in the Capital Expenditure Budget as set forth in Section ‎6.1.2 or (ii) any other capital expenditures not in excess of $5,000,000 in the aggregate in the 2017 fiscal year; (xvii) except in the ordinary course of business, (i) terminate, cancel, renew, fail to exercise an expiring renewal option, amend, grant a waiver under or otherwise modify any Company Material Contract or any lease, sublease or other Agreement in connection with any Company Leased Real Property (collectively and including all amendments thereto, a “Company Real Property Lease”) or any Contract that would constitute a Company Material Contract or a Company Real Property Lease if in effect as of the date of this Agreement (including any buyout of such Contract) or any mining claims or any renewals thereof or (ii) enter into any Contract that would constitute a Company Material Contract or a Company Real Property Lease if in effect as of the date of this Agreement; (xviii) except as required by Applicable Law or the terms of any Company Benefit Plan or Collective Bargaining Agreement as in effect on the date of this Agreement, (i) establish, adopt, amend or terminate any Collective Bargaining Agreement or Company Benefit Plan or commence an off-cycle enrollment period under any Company Benefit Plan that provides health and welfare benefits, (ii) increase in any manner the compensation (including severance, change-in-control and retention compensation) or benefits of Company Employees, (iii) pay or award, or commit to pay or award, any bonuses or incentive compensation, (iv) accelerate any rights or benefits or, except in the ordinary course of business consistent with past practice, make any material determinations or interpretations with respect to any Company Benefit Plan, (v) fund any rabbi trust or similar arrangement, or otherwise accelerate the time of funding, vesting or payment of any payments or benefits under any Company Benefit Plan, (vi) enter into, adopt or amend any employment, individual consulting, bonus, severance or retirement Contract other than offer letters with any non-officer employee (that do not require equity-based compensation) in the ordinary course of business, or (vii) hire, promote or terminate the employment or services of (other than for cause) any officer; (xix) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or Applicable Law; (xx) change in any material respect the policies or practices regarding accounts receivable or accounts payable or fail to manage working capital in accordance with past practices; (xxi) except with respect to Taxes (which shall be governed by Section ‎6.1.3(xxii)), commence, settle, pay, discharge, satisfy or compromise any Proceeding, except for (i) settlements or compromises that (A) involve monetary remedies with a value not in excess of $1,000,000, with respect to any individual Proceeding, or $5,000,000, in the aggregate, (B) ~~use its reasonable best efforts to preserve intact in all~~ do not impose any material ~~respects~~ restriction on its business ~~organization and material~~ activities or the business ~~relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services~~ activities of its ~~present officers and key employees~~ Subsidiaries, and (C) ~~use commercially reasonable efforts~~ do not relate to ~~undertake~~ any Company Stockholder Litigation (the ~~actions enumerated~~ settlement or compromise of which shall be governed exclusively by Section ‎6.12), and (ii) the commencement of any Proceeding that is in the ordinary course of business; (xxii) make, change or revoke any material Tax election or change any material Tax accounting method, file any material amended Tax Return or claim for a material Tax refund, enter into any closing agreement within the meaning of Section ~~5.01-1~~ 7212 of the ~~Company Letter; provided~~Code (or any comparable provision of state, ~~that none~~ local or non-U.S. Applicable Law) with respect to a material amount of Taxes in excess of any amount reserved therefor in accordance with GAAP, request any material Tax ruling, settle or compromise any material Tax proceeding in excess of any amount reserved therefor in accordance with GAAP, or surrender any claim for a material refund of Taxes; (xxiii) abandon or discontinue any existing line of business; (xxiv) enter into any new line of business outside its existing business as of the ~~Company or any~~ date of ~~its Subsidiaries shall be required to~~ this Agreement; (~~or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed~~xxv) ~~make any payments to its business relationship counterparties, beyond that paid~~ other than in the ordinary course of business consistent in ~~order~~ all material respects with past practice, materially reduce the amount of insurance coverage or fail to ~~maintain such business relationships. In addition~~ renew any material existing insurance policies; (xxvi) amend in a manner that adversely impacts in any material respect the ability to ~~and without limiting the generality~~ conduct its business, terminate or allow to lapse any material Permits of the ~~foregoing, during the Pre-Closing Period, except as~~ Company; (wxxvii) ~~expressly required~~ enter into any transaction with any director or ~~expressly contemplated by this Agreement, (x) set forth in Section 5.01~~ officer of the ~~Company Letter~~Company; or (xxviii) authorize, resolve, agree to take (yby Contract or otherwise) ~~required by applicable Law~~ or ~~(z) consented~~ make any commitment to ~~in advance in writing by Parent~~ take, or ~~Buyer (such consent not~~ otherwise become obligated to ~~be unreasonably withheld~~take, ~~conditioned or delayed),~~ any of the ~~Company shall not, and shall cause its Subsidiaries not to:~~foregoing actions that are prohibited pursuant to this Section ‎6.1.3.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Sibanye Gold LTD)

Conduct of the Company. ~~From~~ Except (t) with the ~~date~~ prior written consent of ~~this Agreement until the Closing or the earlier termination of this Agreement in accordance with Article 8~~ Parent (the “Pre-Closing Period”), except as (i) expressly required or expressly contemplated by this Agreement, (ii) set forth in Section 5.01 of the Company Letter, (iii) required by applicable Law or (iv) consented to in advance in writing by Parent or Buyer (such which consent shall not to be unreasonably withheld, conditioned or delayed), (u) as expressly permitted, required or contemplated by this Agreement, (v) as set forth in Section 6.01 of the Company Disclosure Schedule, (w) as required by Applicable Law, (x) pursuant to the terms of any Company Plan in effect as of the date hereof, (y) in connection with any reasonable action taken, or omitted to be taken, pursuant to any COVID-19 Measures or which is otherwise taken, or omitted to be taken, in reasonable response to COVID-19 in good faith, from the date hereof until the Effective Time (provided that the Company shall consult if legally permissible with Parent in good faith prior to taking such actions to the extent reasonably practicable under the circumstances), or (z) as expressly required or contemplated by any Contract between the Company or any of its Subsidiaries, on the one hand, and ONE or any of its Affiliates, on the other hand, the Company (a) shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to (A1)(A) ~~conduct~~ operate the Company Vessels, or cause the Company Vessels to be operated, (i) in a customary manner consistent with past practice, (ii) in accordance with the requirements of the class and flag state of each of the Company Vessels and the applicable manager’s safety management systems and (iii) in compliance with the requirements of port states with which each Company Vessel trades and (B) in the ordinary course of business maintain the Company Vessels, or cause the Company Vessels to be maintained, in good working condition and (2) use commercially reasonable efforts to preserve substantially intact its ~~business~~ business, organization, assets and properties, and (3) use commercially reasonable efforts to preserve in all material respects its relationships with any customers, suppliers and any other Persons with which it has material business relations; provided, however, that no action by the Company or its Subsidiaries with respect to matters specifically addressed by any provision of Section 6.01(b) shall be deemed a breach of this sentence unless such action constitutes a breach of such provision of Section 6.01(b), and (b) shall not, and shall not permit any of its Subsidiaries to: (i) amend its articles of incorporation, bylaws or other similar organizational documents; (ii) (A) split, combine or reclassify any shares of its capital stock, (B) other than as expressly contemplated by Section 6.07, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, except for dividends or other such distributions by any of its wholly owned Subsidiaries and dividends payable to the holders of the Designated Company Preferred Shares, (C) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities, except (x) as required by the terms of the Company Stock Plan with respect to any Company Options, Company RSUs and Company Phantom Shares, in each case, that are issued and outstanding as of the date hereof or after the date hereof in accordance with clause (iii) below, (y) pursuant to the terms of the Exchangeable Notes Indenture or (z) pursuant to an exercise of the Capped Calls or otherwise pursuant to their terms or (D) enter into any agreement with respect to the voting of any Company Securities or Company Subsidiary Securities; (A) except for long-term incentive awards granted in the ordinary course of business in connection with the Company’s year-end compensation review in an aggregate target amount not to exceed an amount equal to 120% of the aggregate grant date fair value of all equity and equity-based incentive awards granted in the ordinary course of business in connection with the Company’s year-end compensation review for the 2021 calendar year, issue, grant, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company Securities or Company Subsidiary Securities, other than the issuance of (1) any Company Common Shares upon the exercise of Company Options that are issued and outstanding as of the date hereof, in accordance with their terms, (2) any Company Common Shares upon the settlement of Company RSUs or Company Phantom Shares that are issued and outstanding as of the date hereof, in accordance with their terms, (3) any Company Common Shares in the ordinary course in accordance with the Company’s current dividend reinvestment program for interested shareholders that have elected to reinvest all or a portion of cash dividends received to purchase Company Common Shares, and (4) any Company Subsidiary Securities to the Company or any other wholly owned Subsidiary of the Company or (B) amend any term of any Company Security or any Company Subsidiary Security, except as required by the terms of any Company Plan; (iv) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, (A) any business or any division thereof or all or substantially all of the assets of, equity or voting securities in, any Person or (B) any vessel, other than, (x) acquisitions of assets, properties, inventory, equipment, supplies and materials in the ordinary course of business, (y) acquisitions pursuant to existing Material Contracts or (z) acquisitions contemplated by the business plan set forth in Section 6.01(b)(iv) of the Company Disclosure Schedule (the “Approved Business Plan”); (v) sell, assign, transfer, convey, lease, license, abandon, allow to lapse or expire, subject to or, grant or suffer to exist any Lien (other than Permitted Liens) on, or otherwise dispose of any of its material assets, securities, properties, interests or businesses, other than (A) the sale or licensing of goods and services (including licenses of Intellectual Property) to customers, suppliers, vendors, partners and other Persons in the ordinary course of business, (B) disposals of obsolete or worthless assets at the end of their scheduled retirement, (C) pursuant to Contracts in effect on the date hereof and (D) transfers among the Company and its wholly owned Subsidiaries, or among the wholly owned Subsidiaries of the Company; (vi) make any material loans, advances or capital contributions to, or investments in, any other Person (other than (A) advances of business expenses to employees in the ordinary course of business, (B) accounts receivable from customers in the ordinary course of business, (C) loans or advances among the Company and any of its wholly owned Subsidiaries and capital contributions to or investments in its wholly owned Subsidiaries, (D) investments of cash in the ordinary course of business not in excess of $10,000,000 in the aggregate, (E) advances of expenses to any director or officer of the Company or its Subsidiaries in connection with advancement obligations in effect on the date of this Agreement or (F) investments constituting Cash Equivalents in the ordinary course of business); (vii) incur any indebtedness for borrowed money or guarantees thereof, other than (A) pursuant to any agreements in effect as of the date hereof (as such agreements may be amended, amended and restated, supplemented or otherwise modified in a manner that (1) does not increase the borrowing capacity thereunder and (2) does not restrict the transactions contemplated by this Agreement), (B) indebtedness incurred between the Company and any of its wholly owned Subsidiaries or between any of such wholly owned Subsidiaries or guarantees by the Company of Indebtedness of any wholly owned Subsidiary of the Company, (C) any obligations under the Company’s existing Contracts as of the date hereof to post additional cash collateral under any letters of credit existing as of the date hereof, (D) other indebtedness for borrowed money not in excess of $50,000,000 in the aggregate (with individual expenditures subject to the Company’s normal governance procedures), in the case of this clause (D), solely to the extent such indebtedness permits the transactions contemplated by this Agreement and is in form and substance reasonably acceptable to Parent, (E) as contemplated in the Approved Business Plan or (F) pursuant to any Permitted Replacement Indebtedness Facilities; provided that any indebtedness incurred pursuant to the foregoing clauses (A), (D) and (E) shall not be used to repay, redeem or otherwise retire any outstanding principal amount of indebtedness under any indebtedness facilities specified on Section 9.02(e) of the Company Disclosure Schedule, other than to the extent permitted to be incurred pursuant to Section 6.08; (viii) make any material new capital expenditures, other than (A) in the ordinary course of business, (B) capital expenditures provided for in the Approved Business Plan or (C) other capital expenditures not in excess of $5,000,000 individually or $20,000,000 in the aggregate; (ix) other than with respect to any Legal Action the settlement of which would be fully covered by the Company’s existing insurance policies, settle any material Legal Action before a Governmental Authority, other than settlements in the ordinary course of business that involve only the payment of money damages (A) not in excess of $500,000 individually or $1,000,000 in the aggregate or (B) consistent with the reserves reflected in the Company’s balance sheet at September 30, 2022; (x) except as required under the terms of any Company Plan or Contract in effect on the date hereof (including, for the avoidance of doubt, any Collective Bargaining Agreement), as contemplated by this Agreement or for immaterial actions to mitigate the impact of any Section 280G excise taxes (provided that in no event shall any such action include an agreement to make gross-up payments), (A) materially increase the compensation or benefits of any Company Service Provider, (B) establish, adopt, enter into, terminate, materially amend, or take any action to accelerate payment, vesting, funding or other rights under any Company Plan or any plan, agreement, program, policy, trust, fund, or other arrangement that would be a Company Plan if it were in existence as of the date of this Agreement, or make any contribution to any Company Plan, other than contributions required by Applicable Law, the terms of such Company Plans as in effect on the date hereof, or that are made in the ordinary course of business consistent with past practice, (BC) ~~use~~ partially or completely withdraw from any Multiemployer Plan, or (D) hire or terminate any Key Employee, other than hiring Key Employees to fill existing vacancies or vacancies caused by resignation or termination (with or without cause) after the date hereof of Key Employees, in any case, in the ordinary course of business consistent with past practice; (xi) change the Company’s methods, principles, policies, practices or procedures of accounting, except as required by changes in GAAP or in Regulation S-X under the 1934 Act; (xii) make, change or rescind any material Tax election (except in the ordinary course of business consistent with past practice), change any annual Tax accounting period, adopt or make any material change in its ~~reasonable best efforts to preserve intact~~ method of Tax accounting, file any material Tax Return in ~~all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with~~ a jurisdiction in which neither the Company ~~has~~ nor its Subsidiaries previously filed, file any material amended Tax Returns or claims for material Tax refunds, engage in any voluntary disclosure or similar process with a Taxing Authority with respect to a material Tax, extend or waive the statute of limitations with respect to the assessment of any material Tax (except for automatically granted extensions or waivers), enter into any material closing agreement, settle or compromise any material Tax claim, audit or assessment (except in the ordinary course of business ~~relationships and keep available~~ consistent with past practice), or surrender (to Persons other than the ~~services~~ Company or any of its ~~present officers and key employees and~~ Subsidiaries) or settle any right to claim a material Tax refund, offset or other material reduction in Tax liability, in each case, other than as required by Applicable Law; (Cxiii) ~~use commercially reasonable efforts~~ merge or consolidate with any other Person or adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization; (xiv) terminate, cancel or fail to ~~undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of~~ renew any material insurance coverage maintained by the Company or any of its Subsidiaries ~~shall be required~~ with respect to any of their respective material assets without replacing such coverage with a comparable amount of insurance coverage, unless (A) such coverage is not available on commercially reasonable terms or ~~shall without Parent~~(B) lesser coverage amounts are reasonably appropriate in light of changes to the Company’s ~~or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed~~and its Subsidiaries’ business (including termination of leases in accordance with the terms hereof); (xv) ~~make any payments to its business relationship counterparties, beyond that paid~~ except in the ordinary course of ~~business~~ business, (A) enter into any Contract that would have been a Material Contract if it had been entered into prior to the date of this Agreement or (B) amend or modify in ~~order~~ any material respect (excluding extensions in the ordinary course of business), terminate (excluding any expiration in accordance with its terms) or waive any material right, benefit or remedy under any Material Contract; (xvi) enter into, amend or modify the terms of any Contract with any Person covered under Item 404 of Regulation S-K under the 1933 Act or make any payment to ~~maintain such business relationships. In addition~~ any Person covered under Item 404 of Regulation S-K under the 1933 Act (other than payments, transactions or benefits pursuant to Company Plans made available to Parent prior to the date hereof); (xvii) make any contributions to any Company Plan or Multiemployer Plan subject to Section 302 of ERISA and ~~without limiting~~ Section 412 of the ~~generality~~ Code, except: (i) in the minimum amount necessary to satisfy the requirements of Section 302(a) of ERISA and Section 412(a) of the Code, or (ii) in the minimum amounts required by the Company’s Collective Bargaining Agreements or Section 515 of ERISA; (xviii) amend, modify, supplement or terminate the Exchangeable Notes Indenture or any Capped Call Confirmation or take any action that would result in a change to the Exchange Rate (as defined in the Exchangeable Notes Indenture as in effect on the date hereof) or a Potential Adjustment Event or otherwise an adjustment to the Option Entitlement, Strike Price or Cap Price (each as defined in the Capped Call Confirmations as in effect on the date hereof) (other than as contemplated pursuant to Section 8.09); or (xix) agree, resolve or commit to do any of the foregoing. Parent and Merger Sub acknowledge and agree that: (A) nothing contained in this Agreement shall give Parent or Merger Sub, ~~during~~ directly or indirectly, the ~~Pre-Closing Period, except as (w) expressly required~~ right to control or ~~expressly contemplated by this Agreement~~direct the Company’s operations prior to the Closing, (xB) ~~set forth in Section 5.01 of~~ prior to the ~~Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed)~~Closing, the Company shall ~~not~~exercise, consistent with and subject to the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (C) notwithstanding anything to the contrary set forth in this Agreement, no consent of Parent or Merger Sub shall ~~cause its Subsidiaries not to:~~be required with respect to any matter set forth in this Section 6.01 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any Applicable Law.

Appears in 1 contract

Samples: Merger Agreement (Sokol David L)

Conduct of the Company. ~~From~~ The Company agrees that between the date of this Agreement ~~until~~ and the ~~Closing or~~ Effective Time or, if earlier, the ~~earlier termination of~~ date, if any, on which this Agreement ~~in accordance with Article 8 (the “Pre-Closing Period”)~~is validly terminated pursuant to Section 8.01, except (a) as ~~(i) expressly required or expressly contemplated by this Agreement, (ii)~~ set forth in Section ~~5.01~~ 6.01 of the Company ~~Letter~~Disclosure Schedule, (~~iii~~b) as required pursuant to or permitted by this Agreement (including Section 6.02 and Section 6.03), (c) as may be required by ~~applicable~~ Applicable Law or any Governmental Authority, or (ivd) as consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (~~such~~ which consent shall not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, (A) conduct its business in all material respects in the ordinary course of business consistent with past practice, (B) use its reasonable best efforts to preserve intact in all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of the Company or any of its Subsidiaries shall be required to (or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationships. In addition to and without limiting the generality of the foregoing, during the Pre-Closing Period, except as (w) expressly required or expressly contemplated by this Agreement, (x) set forth in Section 5.01 of the Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall use commercially reasonable efforts to conduct its and its Subsidiaries’ businesses in all material respects in the ordinary course (except to the extent prohibited by this Section 6.01) and to the extent consistent with the foregoing, the Company shall use commercially reasonable efforts to (x) preserve in the ordinary course of business the Company’s and its Subsidiaries’ material business organizations, material assets and material properties intact and in good working order and condition, ordinary wear and tear excepted, and in the ordinary course of business maintain in all material respects existing or satisfactory relations with its and their material commercial relationships with third parties (including with Governmental Authorities and material customers, suppliers, service providers, creditors, partners and lessors) and (y) maintain in effect all material business Company Permits and material insurance policies (subject to the right to replace such insurance policies with comparable coverage) necessary for the conduct of the business of the Company and its Subsidiaries as conducted on the date of this Agreement. Without limiting the generality of the foregoing, except (i) as set forth in Section 6.01 of the Company Disclosure Schedule, (ii) as required pursuant to or permitted by this Agreement (including Section 6.02 and Section 6.03), (iii) as may be required by Applicable Law or (iv) as consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company agrees that between the date of this Agreement and the Effective Time or, if earlier, the date, if any, on which this Agreement is validly terminated pursuant to Section 8.01, the Company shall not, and shall ~~cause~~ not permit any of its Subsidiaries ~~not~~ to: (a) adopt any change or amendment to the Company Governing Documents or other comparable charter or organizational documents of the Company’s Subsidiaries (whether by merger, consolidation or otherwise); (b) establish a record date for, declare, set aside, make or pay any dividend or other distribution with respect to the capital stock of the Company, whether payable in cash, stock, property or a combination thereof, in each case that would be outside the ordinary course of business; provided, that the foregoing shall not restrict dividends or other distributions from any wholly owned Subsidiary to the Company (or any other direct or indirect Subsidiary of the Company); (c) issue, sell or grant any Company Securities; (d) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization with respect to the Company or any of its Subsidiaries; (e) except (i) as required by the terms of any Company Benefit Plan set forth on Section 4.13(a) of the Company Disclosure Schedule, as in effect on the date of this Agreement, or (ii) to the extent necessary to comply with, or satisfy an exemption from, Section 409A of the Code or other applicable Law, (A) increase the compensation or benefits payable or to become payable to any Employee, other than increases in compensation in the ordinary course of business to non-executive Employees, (B) grant or promise to grant any Employee any award or benefit or any increase in severance or termination pay, other than in the ordinary course of business to non-executive Employees, (C) enter into any written employment, consulting, retention, change in control, severance or termination agreement with any Employee, other than in the ordinary course of business to non-executive Employees or (D) establish, amend, adopt or enter into any collective bargaining agreement or Company Benefit Plan; (f) hire or terminate the employment or service of any named executive officer of the Company (or any individual who would reasonably be expected to be a named executive officer of the Company for fiscal year 2023 pursuant to Item 402 of Regulation S-K of the Exchange Act); (g) implement any employee layoffs that would implicate the WARN Act; (h) permit or allow any Employee or any other Person to participate in the Company NQDC Plan; (i) acquire any business or capital stock of any Person or division thereof, whether in whole or in part (and whether by purchase of stock, purchase of assets, merger, consolidation, or otherwise), in each case, for consideration in excess of $10,000,000 individually or $20,000,000 in the aggregate; (j) dispose of any business line, division or similar material asset, whether in whole or in part (and whether by sale of stock, sale of assets, merger, consolidation, or otherwise), in each case, for consideration in excess of $1,000,000 individually or $5,000,000 in the aggregate; (k) make any material change to any of the accounting methods used by the Company, except for such changes that are permitted by GAAP or Regulation S-X promulgated under the Exchange Act; (l) (i) issue any debt securities or incur, create or assume or otherwise become liable or responsible for any Indebtedness; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person that is not a controlled Affiliate of the Company for borrowed money; (iii) make any loans, advances or capital contributions to, or investments in, any other Person; or (iv) cancel any Indebtedness or waive any claims or rights of substantial value, in each case for purposes of this clause (l), for amounts in excess of $1,000,000 individually or $5,000,000 in the aggregate; (m) (i) make, change, or rescind any material Tax election, (ii) other than in the ordinary course of business, materially change any annual Tax accounting period, (iii) other than in the ordinary course of business adopt or change any material method of Tax accounting, (iv) other than in the ordinary course of business, enter into a material closing agreement, Tax sharing agreement or Tax indemnity agreement, in each case, relating to any material amount of Taxes, (v) other than in the ordinary course of business, settle any material Tax claim, audit or assessment relating to a material amount of Taxes in excess of the amount reserved with respect thereto, (vi) other than in the ordinary course of business surrender any material right to claim a material Tax refund, (vii) other than in the ordinary course of business, file any material amended Tax Return, or (viii) other than in the ordinary course of business, give or request any material extension or waiver of the limitation period applicable to any material Tax claim or assessment; (n) (i) (A) modify or amend in any material respect, (B) terminate (other than terminations pursuant to the expiration of its term), fail to renew (if renewal on terms not less favorable terms to the Company than those in effect on the date of this Agreement are available) or cancel or (C) waive, release or assign any material rights or claims with respect to, any Material Contract or (ii) enter into any Contract that, if entered into prior to the date of this Agreement, would qualify as a Material Contract (other than Material Contracts with Principal Customers or Principal Suppliers or Government Contracts, in each case entered into in the ordinary course of business); (o) except as may be required by Applicable Laws, become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, works council or similar organization; (p) make any capital expenditures or incur any obligations or liabilities in respect thereof, except (i) in accordance with the capital expenditures budget for the Company made available to Parent or (ii) not to exceed $1,000,000 individually or $5,000,000 in the aggregate; (q) settle any Proceeding, in each case, made by or pending against the Company or any of its Subsidiaries, or any of its or their respective officers and directors in their respective capacities as such, other than the settlement of Proceedings that do not require payment by the Company or any Subsidiary of an amount in excess of $1,000,000 or $5,000,000 in the aggregate; provided, however, that neither the Company nor any of its Subsidiaries shall be permitted to settle any Proceeding that would involve injunctive or equitable relief on the Company or any of its Subsidiaries, impose any restrictions or changes on the business or operations of the Company or any of its Subsidiaries or of any present or future Affiliate of the Company or any of its Subsidiaries (including, after the Effective Time, Parent and its Subsidiaries) (other than any such restrictions or changes that are immaterial and do not have an adverse effect on the business, operations or prospects of the Company or any of its Subsidiaries or, after the Effective Time, Parent and its Subsidiaries), or involve any admission of any wrongdoing by the Company or any of its Subsidiaries; (r) enter into any material new line of business other than any line of business that is reasonably ancillary to any existing line of business as of the date of this Agreement; (s) sell, lease, assign, abandon, or permit to lapse, prematurely fail to maintain, exclusively license or otherwise transfer or dispose of or grant any option or exclusive rights in, to or under, any material Owned Intellectual Property (for the avoidance of doubt, including any Registered Company Intellectual Property), or permit or allow all or any portion of any material Owned Intellectual Property (for the avoidance of doubt, including any Registered Company Intellectual Property) to be subjected to any Lien, other than Permitted Liens or Liens that will be released at or prior to the Closing; (t) enter into or adopt any “poison pill” or similar stockholder rights plan; or (u) authorize, commit or agree to take any of the foregoing actions. Notwithstanding the foregoing, (x) nothing contained in this Agreement shall give to Parent or Merger Sub, directly or indirectly, rights to control or direct the operations of the Company or any of its Subsidiaries prior to the Effective Time and (y) prior to the Effective Time, the Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their operations. In addition, notwithstanding the foregoing, nothing in this Section 6.01 shall restrict the Company or any of its Subsidiaries from, or require the consent of Parent prior to, engaging in any transaction or entering into any agreement exclusively among the Company and one or more of its Subsidiaries to the extent done in the ordinary course of business consistent with past practice.

Appears in 1 contract

Samples: Merger Agreement (Heritage-Crystal Clean, Inc.)

Conduct of the Company. From the date of this Agreement until the ~~Closing or~~ earlier to occur of the ~~earlier~~ Effective Time and the termination of this Agreement in accordance with Article ~~8 (the “Pre-Closing Period”),~~ IX except as ~~(i)~~ otherwise expressly ~~required~~ permitted or expressly contemplated by this Agreement, ~~(ii)~~ as set forth in Section ~~5.01~~ 5.1 of the Company Disclosure Letter, ~~(iii) required by applicable Law or (iv)~~ as consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed), for any actions taken reasonably and in good faith to respond to COVID-19 Measures, provided that the Company shall, to the extent reasonably practicable, provide reasonable advance notice of such actions and consult with Parent prior to taking such actions or as required by applicable Law, the Company shall, and shall cause each of its Subsidiaries to, (Ai) conduct its business in all material respects in the ordinary course of business consistent with past ~~practice,~~ practice and (Bii) use its commercially reasonable ~~best~~ efforts to preserve substantially intact ~~in all material respects~~ its current business organization and maintain existing relations and goodwill with material customers, suppliers, distributors, creditors, lessors, employees and other material business ~~relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships~~ relations and keep available the services of the Company’s and its Subsidiaries’ present ~~officers and~~ key ~~employees and~~ employees; provided that (Cx) ~~use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of~~ no action by the Company or any of its Subsidiaries ~~shall~~ permitted by an exception to any of Section 5.1(a) through (q) will be ~~required to~~ a breach of this sentence and (~~or shall without Parent~~y) the Company’s or ~~Buyer’s prior consent,~~ any of its Subsidiaries’ failure to take any action prohibited by any of Section 5.1(a) through (q) will not to be ~~unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course~~ a breach of ~~business in order to maintain such business relationships~~this sentence. ~~In addition to and without~~ Without limiting the generality of the foregoing, ~~during~~ from the ~~Pre-Closing Period~~date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as ~~(w)~~ otherwise expressly ~~required~~ permitted or expressly contemplated by this Agreement, ~~(x)~~ as set forth in Section ~~5.01~~ 5.1 of the Company Disclosure Letter, ~~(y) required by applicable Law or (z)~~ as consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed), or as required by applicable Law, the Company shall not, ~~and~~ nor shall ~~cause~~ it permit any of its Subsidiaries ~~not~~ to: (a) amend or otherwise change its certificate or articles of incorporation, bylaws or other similar organizational documents; (b) split, combine, recapitalize, subdivide or reclassify any Company Securities or Company Subsidiary Securities, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities (other than (i) in connection with the exercise, vesting or settlement of Company Awards in accordance with past practice for award holders who are not “executive officers” and (ii) in connection with the settlement of Company DSUs (or as modified after the date of this Agreement in accordance with the terms of this Agreement)); (c) (i) issue, deliver, sell, assign, pledge, grant, transfer, dispose of, or encumber (other than Permitted Liens), or authorize the issuance, delivery, sale, assignment, pledge, grant, transfer, disposition or encumbrance of, any Company Securities or Company Subsidiary Securities, other than (x) in connection with regular quarterly grants of Company DSUs to directors which are made in the ordinary course of business, in each case under the terms and conditions and in the values as set forth in Section 5.1(c) of the Company Disclosure Letter, (y) the issuance of any shares of Company Stock upon the exercise of Company Stock Options or the settlement of Company RSUs, Company PSUs and Company DSUs that are outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement or granted after the date of this Agreement in accordance with this Agreement, as set forth in Section 5.1(c) of the Company Disclosure Letter and (z) issuances of securities of the Company’s Subsidiaries to the Company or to wholly owned Subsidiaries of the Company or (ii) amend any term of any Company Security or Company Subsidiary Security (in each case, whether by merger, amalgamation, consolidation or otherwise); (d) make or commit to any capital expenditures, except (i) in the ordinary course of business, (ii) pursuant to the Company’s current capital expenditures budget provided to Parent prior to the date hereof (the “2021 Capex Budget”), either on projects itemized in the budget or on substitute projects, (iii) with respect to future capital expenditures budgets, capital expenditures that do not exceed the aggregate amounts budgeted in the 2021 Capex Budget by 10%, (iv) for any actions taken reasonably and in good faith to respond to COVID-19 Measures not to exceed $10 million in the aggregate, or (v) any unbudgeted capital expenditures not to exceed $10 million individually or $30 million in the aggregate per annum without taking into account any amounts permitted by the foregoing clause (iv); (e) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest or otherwise invest in any Person or any division or assets thereof with a value or purchase price (including all potentially payable “earn-out” consideration or any other obligation to potentially pay consideration in the future) in excess of $5 million individually or $10 million in the aggregate, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement that were publicly announced prior to the date of this Agreement or otherwise made available to Parent prior to the date hereof and (ii) purchases of raw materials in the ordinary course of business consistent with past practice; (f) sell, assign, license, lease or otherwise transfer, abandon, allow to let lapse or expire or otherwise dispose of, fail to maintain, pledge or create any Lien on, or authorize any of the foregoing with respect to any of the Company’s or its Subsidiaries’ assets, properties or rights, other than (i) Permitted Liens, (ii) the sale of inventory in the ordinary course of business consistent with past practice, (iii) Intellectual Property portfolio management and maintenance conducted in the ordinary course of business consistent with past practice or (iv) non-exclusive licenses granted to third parties in the ordinary course of business consistent with past practice; (g) incur, prepay, refinance or amend the terms of any indebtedness for borrowed money or guarantees thereof or issue any debt securities, warrants or other rights to acquire any debt securities or assume, guarantee or endorse or otherwise become responsible for, the obligations of any Person, other than (x) intercompany indebtedness, (y) under the Securitization Facility for working capital purposes in the ordinary course of business consistent with past practice and (z) revolving credit advances and the issuance of letters of credit in the ordinary course of business consistent with past practice under the Senior Credit Facility and Securitization Facility; (h) other than in the ordinary course of business consistent with past practice, (i) amend or modify in any material respect or terminate (excluding terminations upon expiration of the term thereof in accordance with the terms thereof) any Company Material Contract or waive, release or assign any material rights, claims or benefits under any Company Material Contract or (ii) enter into any Contract that would constitute a Company Material Contract if entered into prior to the date hereof; (i) other than as required by the terms of any Company Plan or Contract as in effect on the date of this Agreement or adopted or amended after the date of this Agreement in compliance with this Section 5.1, any CBA or applicable Law, (i) adopt, enter into, establish, terminate, or materially amend or modify any Company Plan (or plan or arrangement that would be a Company Plan if in effect on the date of this Agreement), except for routine amendments or renewals of Company Plans that would not result in a material increase in benefits or costs to the Company and its Subsidiaries, or any CBA, (ii) accelerate or increase payments or benefits payable under any Company Plan, (iii) grant any additional equity-based compensation awards pursuant to the Omnibus Plan or otherwise, (iv) grant any loan to, or increase compensation, bonus, severance or other benefits payable to any Employee, officer, director, consultant or other similar agent of the Company or its Subsidiaries, other than promotion or annual merit salary increases (and increases in bonus or other compensation to the extent related to base salary and tied to such promotion or annual merit salary increases), in the ordinary course of business that do not, in the aggregate, exceed the aggregate amounts budgeted for such items for fiscal year 2021, (v) hire (other than to fill an open position) or terminate (other than a termination “for cause”) any Employee who has a position that is at or above grade level 28 (“Vice President Level”), (vi) grant any severance, change of control, retention, termination or similar compensation or benefits payable to any Employee, officer, director or consultant of the Company or its Subsidiaries, (vii) materially increase the funding or contribution rate with respect to any Company Plan, or (viii) enter into any employment or other similar agreement (or amend any existing agreement) with respect to any Vice President Level Employee; (j) change the Company’s methods, principles, policies, practices or procedures of financial accounting, except as required by GAAP or SEC rule or other applicable Law; (k) make, change or revoke any material Tax election, change any annual Tax accounting period, adopt or change any material method of Tax accounting, amend any material Tax Returns or file any claims for material Tax refunds, enter into any material closing agreement, settle any material Tax claim, audit or assessment or surrender any right to claim a material Tax refund, except, in each of the foregoing cases, to the extent any such action is required by Law or is undertaken in the ordinary course of business, or request any ruling or written determination from a Taxing Authority with respect to a material amount of Taxes; (l) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of the Company or any Subsidiary of the Company; (m) settle, or offer or propose to settle, any Proceeding involving or against the Company or any of its Subsidiaries in excess of $5 million (excluding, for the avoidance of doubt, amounts paid by insurance and other amounts not paid out-of-pocket by the Company) or which would reasonably be expected to (i) prevent or materially delay or impair the consummation of the Merger or the other transactions contemplated by this Agreement or (ii) involve any criminal liability or any admission of material wrongdoing or any material wrongful conduct by the Company or any of its Subsidiaries; (n) declare, set aside, establish a record date for or pay any dividends on, or make any other distributions in respect of, any Company Securities or any Company Subsidiary Securities, other than distributions by any direct or indirect wholly-owned Subsidiary of the Company to the Company or any other wholly-owned Subsidiary of the Company; (o) other than in the ordinary course of business consistent with past practice, make any loans, advances, or capital contributions to or investments in any Person, including guarantees of the obligations of such Person, in excess of $5 million in the aggregate, other than the Company or any direct or indirect wholly owned Subsidiary of the Company; (p) enter into any new line of business outside its existing lines of business as of the date of this Agreement; or (q) agree, resolve, authorize or commit to do any of the foregoing. (r) Parent and Merger Sub acknowledge and agree that: (i) nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s operations prior to the Closing, (ii) prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Parent or Merger Sub shall be required with respect to any matter set forth in this Section 5.1 or elsewhere in this Agreement to the extent that the requirement of such consent could violate any applicable Law.

Appears in 1 contract

Samples: Merger Agreement (Domtar CORP)

Conduct of the Company. (a) From and after the ~~date~~ execution and delivery of this Agreement until the ~~Closing or~~ earlier of the ~~earlier~~ Effective Time and the termination of this Agreement in accordance with Article ~~8 (the “Pre-Closing Period”)~~9, except as (i) ~~expressly~~ consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (ii) required or expressly contemplated by this Agreement, (iiiii) is required by a Governmental Entity or under applicable Law or to comply with a Company Material Contract, (iv) taken reasonably and in good faith in response to COVID-19 or COVID-19 Measures, (v) required or expressly contemplated by any of the Pending Sale Transaction SPAs and any agreements entered into in connection therewith or (vi) set forth in Section ~~5.01~~ 7.1 of the Company Disclosure Letter~~, (iii) required by applicable Law or (iv) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed)~~, the Company shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to (A) conduct its business in all material respects in the ordinary course of ~~business consistent with past practice~~business, (B) ~~use~~ preserve its ~~reasonable best efforts to preserve intact in all material respects~~ and its Subsidiaries’ business ~~organization~~ organizations substantially intact, (C) maintain its and ~~material business relationships~~ its Subsidiaries’ existing relations and goodwill with Governmental Entities, suppliers, ~~vendors~~distributors, ~~Governmental Authorities~~consultants, ~~Customers~~ licensors, licensees, creditors, lessors, employees and ~~other Persons~~ others having significant business dealings with ~~which the Company has material business relationships~~ them and (D) keep available the services of its ~~present~~ and its Subsidiaries’ officers and key ~~employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter~~employees; provided, that ~~none of~~ no action or omission by the Company or any of its Subsidiaries with respect to matters specifically addressed by any provision of Section 7.1(b) shall be ~~required~~ a breach of this Section 7.1(a). (b) From and after the execution and delivery of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 9, except as (u) consented to in writing by Parent (or which consent shall ~~without Parent’s or Buyer’s prior consent,~~ not to be unreasonably withheld, conditioned or delayed), (v) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationships. In addition to and without limiting the generality of the foregoing, during the Pre-Closing Period, except as (w) expressly required or expressly contemplated by this Agreement, (w) required by a Governmental Entity or under applicable Law or to comply with a Company Material Contract, (x) taken reasonably and in good faith in response to COVID-19 or COVID-19 Measures, (y) required or expressly contemplated by any of the Pending Sale Transaction SPAs and any agreements entered into in connection therewith or (z) set forth in Section ~~5.01~~ 7.1 of the Company Disclosure Letter, the Company shall not, and shall not permit any of its Subsidiaries, to: (yi) adopt or propose any change in its Organizational Documents; (ii) merge or consolidate with any other Person or acquire any assets or capital stock of any other Person, other than acquisitions of assets in the ordinary course of business; (iii) except as expressly required pursuant to any of the Pending Sale Transaction SPAs, sell, lease, license, encumber, or otherwise surrender, relinquish or dispose of any materials assets, other than in the ordinary course of business; (iv) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization; (v) terminate, amend, modify or supplement, waive any right under, or transfer or assign any right or obligation under, any of the Pending Sale Transaction SPAs; (vi) except as set forth in Section 7.1(b)(xv), issue, deliver, sell, grant, encumber, or otherwise enter into any Contract or understanding with respect to the voting of, (A) any shares of capital stock, Company Equity Awards or other equity interests of the Company or of any of its Subsidiaries (other than (1) such issuance of shares of capital stock by a Wholly Owned Subsidiary of the Company to the Company or another Wholly Owned Subsidiary of the Company, (2) such issuance of shares of capital stock in respect of the exercise, vesting and settlement, as applicable, of Company Equity Awards outstanding as of the date of this Agreement in accordance with their terms and, as applicable, the terms of the 2016 Plan in effect on the date of this Agreement) or (3) such issuance of dividend equivalent units in connection with the Company’s declaration and payment of semi-annual dividends (or the issuance of shares of capital stock into which such units convert) or (B) securities convertible into or exchangeable into or exercisable for any such shares of capital stock, or any options, warrants or other rights of any kind to acquire any such shares of capital stock or such convertible or exchangeable securities, in each case other than in respect of outstanding Company Equity Awards; (vii) make any loans, advances, guarantees or capital contributions to, or investments in, any Person in excess of $5,000,000 in the aggregate, except (A) to or from the Company and any of its Wholly Owned Subsidiaries and (B) for loans or advances made to directors, officers and other employees of the Company and its Subsidiaries (1) for business-related travel, other business-related expenses, in each case, in the ordinary course of business or (2) pursuant to the indemnification and advancement rights of such Persons in effect as of the date of this Agreement under any agreement between or among such Person and the Company or any Subsidiary thereof or the Organizational Documents of the Company or any Subsidiary thereof; (viii) declare, set aside, establish a record date for, accrue, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise) in respect of, any capital stock of the Company or any of its Subsidiaries or other equity or voting interests (including with respect to the Company, for the avoidance of doubt, Shares), except for (A) dividends paid by any Wholly Owned Subsidiary to the Company or to any other Wholly Owned Subsidiary of the Company, (B) a regular dividend of $0.22 per share, which the Company shall declare in December 2021 and pay in the ordinary course consistent with past practice, and (C) a dividend in an amount equal to the Final Dividend Amount, which the Company shall declare not more than five Business Days prior to the Closing Date and pay on or prior to the Closing Date; (ix) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire (or offer to do any of the foregoing), directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (including, with respect to the Company, any Shares) or other equity or voting interests or any options, restricted shares, warrants, calls or rights to acquire any such shares or other securities, including Company Equity Awards, except pursuant to the forfeiture provisions of such Company Equity Awards or the cashless exercise or tax withholding provisions of such Company Equity Awards, in each case, if and only to the extent permitted by the terms of such Company Equity Awards; (x) incur or assume any indebtedness for borrowed money with an aggregate principal amount in excess of $1,000,000, guarantee any such indebtedness for borrowed money of another Person or enter into a “keep well” or similar agreement in respect of indebtedness for borrowed money (including the issuance of any debt securities, warrants or other rights to acquire any debt security); (xi) enter into, terminate (other than expirations of any such Company Material Contract in accordance with its terms), materially amend, waive or assign any material right or claim under any Company Material Contract or any Contract that would have been required to be disclosed pursuant to Section 5.10(a) or 5.10(b) (or any Contract that would be a Company Material Contract if it were in effect as of the date of this Agreement), other than in the ordinary course of business; (xii) adopt or implement any stockholder rights plan, “poison pill,” anti-takeover plan or other similar agreement or plan; (xiii) write down any of its material assets except as required by ~~applicable~~ GAAP or the Company’s accounting policies or with respect to normal obsolescence or make any changes with respect to accounting policies or procedures, except as required by changes in Law or GAAP; (zxiv) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, file any income or other material Tax Returns that have been prepared in a manner that is inconsistent with past practice, enter into any closing agreement with respect to any material amount of Taxes, settle any claim or assessment in respect of a material amount of Taxes, surrender any right to claim a refund of a material amount of Taxes, agree to an extension or waiver of the statute of limitations (other than in the ordinary course of business) with respect to the assessment or determination of any material Taxes or settle any material Tax claim; (xv) except as required by the terms of any Company Benefit Plan in effect as of the date of this Agreement, (A) grant any equity or equity-based awards or increase the compensation or benefits provided to any current or former director, officer, employee or service provider of the Company and its Subsidiaries other than base salary or wage (and corresponding bonus) increases for non-executive officer employees in the ordinary course of business, (B) grant or provide any change in control, severance, termination retention or similar payments or benefits to any current or former director, officer, employee or service provider of the Company and its Subsidiaries (including any obligation to gross-up, indemnify or otherwise reimburse any such individual for any Tax incurred by any such individual, including under Section 409A or 4999 of the Code), (C) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits (including any equity or equity-based awards) to any current or former director, officer, employee or natural person service provider of the Company and its Subsidiaries, (D) establish, adopt, enter into, terminate or amend any Company Benefit Plan or establish, adopt or enter into any plan, agreement, program, policy or other arrangement that would be a Company Benefit Plan if it were in existence as of the date of this Agreement, other than in connection with routine, immaterial or ministerial amendments to health and welfare plans that do not materially increase benefits or result in a material increase in administrative costs, (E) hire or engage, or make an offer to hire or engage, any employee at the level of Vice President or above, or individual independent contractor whose annual fee arrangement exceeds $200,000 or (F) terminate the employment or engagement of any current employee at the level of Vice President or above, or individual independent contractor (excluding individual independent contractors arrangements for a limited period of time or that expire in accordance with their terms) whose annual fee arrangement exceeds $200,000 other than for cause; (xvi) enter into or acquire a new line of business or abandon or discontinue any existing line of business; or (xvii) agree, authorize or commit to do any of the foregoing. (c) Except as (i) consented to in ~~advance in~~ writing by ~~Parent or Buyer~~ the Special Committee (~~such~~ which consent shall not to be unreasonably withheld, conditioned or delayed), (ii) required or expressly contemplated by this Agreement, (iii) is required by a Governmental Entity or under applicable Law, (iv) taken reasonably and in good faith in response to COVID-19 or COVID-19 Measures, or (v) required or expressly contemplated by any of the ~~Company~~ Pending Sale Transaction SPAs and any agreements entered into in connection therewith, Parent shall ~~not~~not take any action or fail to take any action, and shall ~~cause~~ not permit any of its Affiliates (including the Company and its Subsidiaries) to take any action or fail to take any action, where the taking of such action or failure to take such action would be reasonably likely to (i) result in any of the conditions set forth in Article 8 not being satisfied or (ii) prevent, materially delay or materially impair the ability of the Parties to consummate the Transactions. Notwithstanding anything to the contrary set forth in this Agreement, (A) any breach by the Company or any of its Subsidiaries of their obligations under this Agreement resulting from any action or inaction by any Joint Employee (other than any action taken or inaction not ~~to:~~taken at the express direction of the Special Committee) shall not constitute a breach of this Agreement for purposes of Article 8 or a breach of the condition precedent set forth in Section 8.2(b) and (B) no action taken or inaction not taken by the Special Committee, or by any officer or employee of the Company or any of its Subsidiaries at the express direction of the Special Committee, shall constitute an action or inaction taken (or not taken) by Parent.

Appears in 1 contract

Samples: Merger Agreement (Independence Holding Co)

Conduct of the Company. ~~From~~ The Company agrees that between the date of this Agreement ~~until~~ and the ~~Closing~~ Effective Time or the ~~earlier termination~~ date, if any, on which this Agreement is terminated pursuant to Section 8.01, except (a) as set forth in Section 6.01 of the Company Disclosure Schedule, (b) as expressly required pursuant to or expressly permitted by this Agreement (including Section 6.03 and Section 6.04), (c) as required by Applicable Law or (d) as consented to in writing in advance by Parent, the Company shall (i) conduct its businesses in the ordinary course consistent with past practice, (ii) use commercially reasonable efforts to preserve materially intact its current business organization and to preserve in all material respects the relationships of the Company and its Subsidiaries with its employees, suppliers, licensors, licensees, distributors, wholesalers, lessors and others having business dealings with the Company or any of its Subsidiaries, (iii) use commercially reasonable efforts to keep and maintain the assets and properties of the Company and its Subsidiaries in accordance with past practice, normal wear and tear excepted, and (iv) comply in all material respects with Applicable Law. Without limiting the generality of the foregoing, except (w) as set forth in Section 6.01 of the Company Disclosure Schedule, (x) as expressly required pursuant to or expressly permitted by this Agreement (including Section 6.03 and Section 6.04), (y) as required by Applicable Law, or (z) as consented to in writing in advance by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.01, the Company shall not, and shall not permit any of its Subsidiaries to: (a) amend the Company’s Governing Documents or other comparable charter or organizational documents of the Company’s Subsidiaries (whether by merger, consolidation or otherwise); (b) establish a record date for, declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or other equity, property or otherwise, including any combination thereof) in respect of, or enter into any Contract with respect to the voting of, any capital stock of the Company or any capital stock or other Equity Interests of its Subsidiaries (other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to the Company or any of the Company’s other wholly owned Subsidiaries), adjust, recapitalize, combine, split, subdivide or reclassify any Company Securities or any capital stock or other Equity Interests, or securities convertible, exchangeable or exercisable for capital stock or other Equity Interests, of its Subsidiaries, except as otherwise provided in Section 6.01(c), issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, any Company Securities or any shares of capital stock or other Equity Interests, or securities convertible, exchangeable or exercisable for capital stock or other Equity Interests, of its Subsidiaries or purchase, redeem or otherwise acquire or offer to purchase, redeem or otherwise acquire any Company Securities, except for acquisitions of shares of Company Common Stock by the Company as required by the terms of Company Equity Awards in effect and outstanding as of the date hereof; (c) issue, deliver, sell, grant, pledge, transfer, subject to any Lien or otherwise dispose of any Company Securities, other than (w) the issuance of shares of Company Common Stock upon the settlement of Company Equity Awards, in each case, that are outstanding on the date of this Agreement and as required by the applicable Company Equity Award’s terms or (x) the issuance of shares of the Company Common Stock in accordance with ~~Article 8~~ the provisions of Section 2.06(b) hereof or amend any term of any Company Security or any outstanding share of capital stock of, or other Equity Interest or voting security in, any Subsidiary of the Company (in each case, whether by merger, consolidation or otherwise); (d) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization with respect to the ~~“Pre-Closing Period”),~~ Company or any of its Subsidiaries; (e) except as required by Applicable Law or the terms of any Company Benefit Plan in effect on the date hereof and set forth in Section 4.13(a) of the Company Disclosure Schedule, (A) increase the compensation or other benefits payable or to become payable to Employees with annual base compensation in excess of $150,000, (B) grant any Employee any increase in severance or termination pay, (C) enter into any employment, consulting, severance or termination agreement with any Employee with annual base compensation in excess of $150,000, (D) establish, adopt, amend, modify, terminate or enter into any (1) collective bargaining agreement or other agreement with a labor union, works council or similar organization or (2) Company Benefit Plan or any plan, program, agreement, or arrangement that would constitute a Company Benefit Plan if in effect on the date hereof, (E) accelerate any rights or benefits under any Company Benefit Plan, or (F) hire or terminate (other than for cause) any Employee with annual base compensation in excess of $150,000; (f) waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement or other restrictive covenant obligation of any current or former Employee; (i) ~~expressly required~~ sell or ~~expressly contemplated~~ acquire (A) any real property (regardless of the consideration payable therefor), (B) any business or capital stock or other securities of or all or substantially all of the assets of any Person or division thereof, whether in whole or in part (and whether by purchase of stock, purchase of assets, merger, consolidation, or otherwise), (C) any material amount of assets, securities, properties (other than real property), or interests for consideration, in the case of this clause (C), in excess of $750,000 in the aggregate, or (D) any assets, securities, properties (other than real property) or interests to or from any Company Franchisee, (ii) enter into any joint venture, strategic alliance or arrangement or make any investment or (iii) encumber or subject to any Lien any assets of the Company or any of its Subsidiaries; (h) (i) enter into any new line of business outside the existing business of the Company and its Subsidiaries as of the date of this Agreement, (ii) implement a strategy that deviates from the plan set forth in Section ~~5.01~~ 6.01(h)(ii) of the Company ~~Letter,~~ Disclosure Schedules or (iii) adopt any system or strategy of preparing food outside of store locations; (i) agree to any exclusivity, non-competition or similar provision or covenant restricting the Company, any of its Subsidiaries or any of their respective Affiliates, from competing in any line of business or with any Person or in any area; (j) enter into or adopt any “poison pill” or similar stockholder rights plan, in each case, applicable to the Merger and the other transactions contemplated by this Agreement; (k) make any material change to any of the accounting methods, principles or practices used by the Company, except for such changes that are required by ~~applicable Law~~ GAAP or Regulation S-X promulgated under the Exchange Act; (l) (i) incur or assume any long-term or short-term indebtedness in excess of $250,000, other than borrowings under the Company Existing Credit Facility in the ordinary course of business for working capital purposes; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other Person for borrowed money; (iii) make any loans, advances or capital contributions to, or investments in, any other Person in a material amount; (iv) ~~consented~~ cancel any material indebtedness or waive any claims or rights of substantial value; or (v) amend the terms of any indebtedness existing on the date of this Agreement; (i) make (other than in the ordinary course of business), change, or revoke any material Tax election; (ii) file any amended income or other material Tax Return; (iii) change any annual Tax accounting period; (iv) adopt or change any method or practice of Tax accounting; (v) enter into any “closing agreement” (within the meaning of Section 7121 of the Code) (or similar agreement), Tax sharing agreement or Tax indemnity agreement; (vi) settle, compromise, concede or abandon any Tax contest or Tax claim, audit or assessment with respect to a material amount of Taxes; (vii) fail to pay any material Taxes as they become due and payable; (viii) surrender any right to claim a material Tax refund; or (ix) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; (n) make any capital expenditures or incur any obligations or liabilities in ~~advance~~ respect thereof, except for any such capital expenditures made or obligations or liabilities incurred that are less than $200,000 individually or $1,500,000 in ~~writing~~ the aggregate, and in each case, in accordance with the line items set forth in the capital expenditures budget for the Company made available to Parent; (o) other than with respect to Proceedings pursuant to Section 6.07, settle any Proceeding made by ~~Parent~~ or ~~Buyer~~ pending against the Company or any of its Subsidiaries, or any of its or their respective officers and directors in their capacities as such, other than the settlement of Proceedings in the ordinary course of business consistent with past practice that do not (~~such consent not~~ i) require payment by the Company or any Subsidiary of an amount in excess of $200,000 individually or $600,000 in the aggregate or (ii) include any obligation (other than the payment of money) to be ~~unreasonably withheld~~performed, ~~conditioned~~ or ~~delayed)~~the admission of wrongdoing, by the Company ~~shall, and shall cause each~~ or any of its Subsidiaries toor any of their respective officers or directors; (p) (i) modify, amend, waive, or fail to enforce, in each case in any material respect, or assign to any Third Party, replace or release, settle or compromise any material claim, liability or obligation under, or terminate any (A) ~~conduct its business in all material respects~~ Material Contract, (B) Leased Real Property Lease or (C) Company Franchise Agreement other than extension for time or temporary and short-term modifications of royalty payments in the ordinary course of business consistent with past practice, or (Bii) ~~use its reasonable best efforts~~ enter into a Contract that would, if entered into prior to ~~preserve intact~~ the date hereof, be (x) a Material Contract, (y) a Leased Real Property Lease or (z) a franchise or development Contract or similar Contract, including any area development agreement, area license agreement, license agreement, master franchise agreement, subfranchise agreement, or area representative agreement, with a Company Franchisee, other than, in the case of this clause (z), such Contracts entered into in the ordinary course that are substantially on the Company’s standard form; (q) sell, assign, lease, license, sublicense, terminate, abandon, waive, allow to lapse or otherwise transfer or dispose of, create or incur any Lien (other than Permitted Liens) on, or grant any interest in or rights with respect to, any Intellectual Property (except for non-exclusive licenses (i) contained in franchise or development Contracts or similar Contracts with Company Franchisees entered into in the ordinary course of business and that conform in all material respects with the Company’s or its ~~business organization and material business relationships with suppliers,~~ applicable Subsidiary’s standard form of such Contracts as of the date hereof or (ii) granted by the Company or its Subsidiaries to vendors, ~~Governmental Authorities, Customers~~ suppliers and ~~other Persons with which the Company has material business relationships and keep available the~~ contractors solely to perform services ~~of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of~~ for the Company or any of its ~~Subsidiaries shall~~ Subsidiaries); (r) disclose to any Person any confidential information or trade secrets, other than pursuant to a written appropriate confidentiality and non-disclosure contract; (s) implement any employee layoffs that would reasonably be ~~required~~ expected to implicate the WARN Act; or (t) authorize, commit or ~~shall without Parent’s or Buyer’s prior consent, not~~ agree to ~~be unreasonably withheld, conditioned or delayed) make~~ take any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationships. In addition to and without limiting the generality of the foregoing actions. Notwithstanding the foregoing~~, during the Pre-Closing Period, except as (w) expressly required or expressly contemplated by this Agreement~~, (x) ~~set forth~~ nothing contained in ~~Section 5.01~~ this Agreement shall give to Parent or Merger Sub, directly or indirectly, rights to control or direct the operations of the Company ~~Letter~~and its Subsidiaries prior to the Effective Time and, (y) ~~required by applicable Law or (z) consented~~ prior to ~~in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed)~~the Effective Time, the Company shall ~~not~~exercise, consistent with the terms and ~~shall cause~~ conditions of this Agreement, complete control and supervision over its ~~Subsidiaries not to:~~operations.

Appears in 1 contract

Samples: Merger Agreement (Fiesta Restaurant Group, Inc.)

Conduct of the Company. From the date ~~of this Agreement~~ hereof until the Closing Date, Seller shall cause each Company to conduct its businesses in all material respects in the ordinary course consistent with past practice, to use its commercially reasonable efforts to preserve intact its business organizations and relationships with third parties, to keep available the services of its present officers and employees and to comply in all material respects with all Applicable Laws and requirements or mandates of Governmental Authorities. Without limiting the ~~earlier termination~~ generality of ~~this Agreement in accordance with Article 8 (~~the ~~“Pre-~~foregoing, from the date hereof until the Closing ~~Period”)~~Date, except as ~~(i) expressly required or expressly contemplated by this Agreement, (ii) set forth~~ disclosed in Section 5.01 of the ~~Company Letter~~Seller Disclosure Schedules or as expressly contemplated hereby, ~~(iii) required by applicable Law or (iv) consented to in advance in writing by Parent or~~ Seller will not without the prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed), ) permit any of the ~~Company shall, and shall cause each~~ Companies to: (a) adopt or propose any change in its certificate of incorporation or bylaws; (b) change the number of authorized or issued shares of its ~~Subsidiaries to~~capital stock, or split, combine or reclassify any shares of Company Securities; (Ac) ~~conduct its business~~ declare, set aside or pay any dividend or other distribution (whether in ~~all material respects~~ cash, stock or property or any combination thereof) in the ordinary course of business consistent with past practice, (B) use its reasonable best efforts to preserve intact in all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 respect of the Transferred Shares, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Transferred Shares; (d) issue, deliver or sell any shares of Company Letter; provided, that none of the Company or any of its Subsidiaries shall be required to (or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationships. In addition to and without limiting the generality of the foregoing, during the Pre-Closing Period, except as (w) expressly required or expressly contemplated by this Agreement, (x) set forth in Section 5.01 of the Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries not to:Securities;

Appears in 1 contract

Samples: Subscription Agreement (Oriental Financial Group Inc)

Conduct of the Company. ~~From~~ Except as set forth in Section 6.01 of the Company Disclosure Schedule, and except for any actions substantially consistent with the terms of any bids tendered to any potential customer prior to the date of this ~~Agreement until the Closing or the earlier termination of this Agreement in accordance with Article 8 (the “Pre-Closing Period”)~~Agreement, ~~except as (i)~~ expressly required or ~~expressly contemplated~~ permitted by this Agreement, ~~(ii) set forth in Section 5.01 of the Company Letter, (iii)~~ required by ~~applicable~~ Applicable Law or ~~(iv)~~ consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed), from the date of this Agreement until the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, ~~(A)~~ conduct its business in all material respects in the ordinary course ~~of business~~ consistent with past ~~practice, (B)~~ practice and use its reasonable best efforts to (i) preserve intact its present business organization, (ii) maintain in effect all of its material ~~respects its business organization~~ foreign, federal, state and ~~material business relationships with suppliers~~local licenses, ~~vendors~~permits, ~~Governmental Authorities~~consents, ~~Customers~~ franchises, approvals and ~~other Persons with which the Company has material business relationships and~~ authorizations, (iii) keep available the services of its ~~present~~ directors, officers and ~~key employees and~~ Key Employees (~~C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of~~ provided, however, that the Company ~~Letter; provided, that none of the Company or any of its Subsidiaries~~ shall not be required to (increase the compensation of, or ~~shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed)~~ make any other payments to not otherwise due to, such persons) and (iv) maintain satisfactory relationships with its customers, creditors, suppliers and others having material business ~~relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationships~~relationships with it. ~~In addition to and without~~ Without limiting the generality of the foregoing, ~~during the Pre-Closing Period,~~ except as ~~(w)~~ expressly required or ~~expressly contemplated~~ permitted by this ~~Agreement, (x)~~ Agreement or set forth in Section ~~5.01~~ 6.01 of the Company ~~Letter~~Disclosure Schedule, ~~(y)~~ required by ~~applicable~~ Applicable Law or ~~(z)~~ consented to ~~in advance in writing~~ by Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, ~~and~~ nor shall ~~cause~~ it permit any of its Subsidiaries ~~not~~ to: (a) amend its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise), other than (i) to adopt the Amended and Restated Company Charter at the Effective Time; and (ii) amend any such organizational document of any Subsidiary of the Company in accordance with Section 8.09 or in an immaterial respect; (b) (i) split, combine or reclassify any shares of its capital stock, (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, except for dividends by any of its wholly-owned Subsidiaries or as set forth in Section 6.01(b) of the Company Disclosure Schedule or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities (except pursuant to the forfeiture of Company Equity Awards or the acquisition by the Company of shares of Company Stock in settlement of the exercise price of a Company Stock Option or for purposes of satisfying Tax withholding obligations with respect to holders of Company Equity Awards); (c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company Securities or Company Subsidiary Securities, other than the issuance of (A) any shares of Company Stock upon the exercise of Company Equity Awards that are outstanding on the date of this Agreement in accordance with the terms thereof and (B) any Company Subsidiary Securities to the Company or any other wholly-owned Subsidiary of the Company or (ii) amend any term of any Company Security, any Company Subsidiary Security or the Debentures (in each case, whether by merger, consolidation or otherwise), except for changes to the terms of Company Equity Awards in the ordinary course consistent with past practice or in accordance with Section 2.04 hereof; (d) incur any capital expenditures or any obligations or liabilities in respect thereof, except (i) with respect to the current year, as contemplated by the capital expenditure budget for the current year, a copy of which the Company has made available to Parent prior to the date of this Agreement; (ii) with respect to the year 2012, $5,000,000; (iii) any unbudgeted capital expenditures not to exceed $1,000,000 individually or $3,000,000 in the aggregate; and (iv) to repair damage resulting from insured casualty events; (e) other than as permitted by Section 6.01(d) or as set forth in Section 6.01(e) of the Company Disclosure Schedule, acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than (i) equipment, components, raw materials or supplies in the ordinary course of business consistent with past practice and (ii) acquisitions with a purchase price (including assumed indebtedness) that does not exceed $500,000 individually or $2,000,000 in the aggregate; (f) sell, lease, license, abandon, permit to lapse or otherwise transfer, or create or incur any Lien other than Permitted Liens on, any of the Company’s or its Subsidiaries’ assets, properties, rights, interests or businesses, other than sales of assets, properties, interests or businesses (i) in the ordinary course of business consistent with past practice (other than Owned Vessels not held for sale on the date hereof) or (ii) with a value (including any related assumed indebtedness) that does not exceed $500,000 individually or $2,000,000 in the aggregate; (g) other than in connection with actions permitted by Section 6.01(d) or Section 6.01(e), make any loans, advances or capital contributions to, or investments in, any other Person, other than (A) in the ordinary course of business consistent with past practice (including extensions of payment terms to customers) or (B) intercompany loans, advances or capital contributions between the Company and its wholly-owned Subsidiaries or between any of the Company’s wholly-owned Subsidiaries; (h) create, incur, assume or otherwise become liable with respect to any indebtedness for borrowed money or guarantees thereof having an aggregate principal amount (together with all other indebtedness for borrowed money of the Company and its Subsidiaries) outstanding at any time greater than $5,000,000; except for cash-collateralization of letters of credit under the Credit Facility; (i) (i) enter into any contract, agreement, arrangement or understanding of the type referred to in the last sentence of Section 4.22 or (ii) other than in the ordinary course of business consistent with past practice (including to address change orders or any disputes with customers or vendors), enter into, amend or modify in any material respect or terminate any Material Contract (or any contract entered into after the date of this Agreement that would have been a Material Contract if entered into prior to the date of this Agreement) or otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Subsidiaries thereunder; (j) except to the extent required by the terms of any Employee Plan or International Plan, (i) with respect to any director, officer or employee whose annual compensation exceeds $125,000 of the Company or any of its Subsidiaries, (A) grant or increase any severance or termination pay or amend any existing severance pay or termination arrangement; (B) enter into any employment, consultancy, deferred compensation, severance or other similar agreement (or amend any such existing agreement); or (C) increase benefits payable under any existing severance or termination pay policies or employment agreements, except in the case of each of clauses (A) through (C) for the participation in employee benefits plans generally available to employees and customary compensation arrangements, in each case for newly hired non-executive, non-officer employees in the ordinary course consistent with past practice; (ii) establish, adopt or materially amend any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, stock option, restricted stock or other benefit plan or arrangement; or (iii) increase or make any other favorable change to the compensation, bonus or other benefits payable to any director, officer, or employee of the Company or any of its Subsidiaries, except, with respect to any non-executive employee of the Company or any of its Subsidiaries whose annual compensation does not exceed $125,000, for increases in the ordinary course of business consistent with past practice; (k) change materially the Company’s methods of accounting, except as required by changes in GAAP or in Regulation S-X of the 1934 Act, as agreed to by its independent public accountants; (l) settle, or offer or propose to settle, (i) any material litigation, investigation, arbitration, proceeding or other claim involving or against the Company or any of its Subsidiaries, except (A) in the ordinary course of business consistent with past practice (including settling change orders or any disputes with customers or vendors) or (B) any settlement of the matters disclosed, reflected or reserved against in the most recent financial statements (or the notes thereto) of the Company included in the Company SEC Documents for an amount not materially in excess of the amount so disclosed, reflected or reserved; (ii) any stockholder litigation or dispute against the Company or any of its officers or directors; or (iii) any litigation, arbitration, proceeding or dispute that relates to the transactions contemplated hereby; or (m) agree, resolve or commit to do any of the foregoing.

Appears in 1 contract

Samples: Merger Agreement (Global Industries LTD)

Conduct of the Company. From the date of this Agreement until the ~~Closing or~~ earlier of the ~~earlier~~ Effective Time and the valid termination of this ~~Agreement in accordance with Article 8 (the “Pre-Closing Period”)~~Agreement, except (x) as required by Applicable Law, (iy) ~~expressly~~ as set forth in Section 6.01 of the Company Disclosure Schedule, or (z) as otherwise required or expressly ~~contemplated~~ permitted by this Agreement, ~~(ii) set forth in Section 5.01 of the Company Letter, (iii) required by applicable Law or (iv) consented to in advance~~ unless Parent shall otherwise consent in writing ~~by Parent or Buyer~~ (~~such~~ e-mail being sufficient) (which consent shall not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, ~~(A)~~ conduct its business ~~in all material respects~~ in the ordinary course of business consistent with past ~~practice~~practice and use its commercially reasonable efforts to (A) preserve intact its business organization and relationships with customers, members, suppliers, lenders, licensors, licensees, Governmental Authorities with jurisdiction over the Company’s operations and other Third Parties having material business relationships with the Company and its Subsidiaries, (B) ~~use its reasonable best efforts to preserve intact~~ maintain in effect all material ~~respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the~~ Company ~~has material business relationships and keep available the services of its present officers and key employees~~ Permits and (C) ~~use commercially reasonable efforts to undertake~~ maintain and preserve the ~~actions enumerated in Section 5.01-1 of~~ goodwill associated with its business, affairs and properties, its reputation and its brand value; provided that neither the Company ~~Letter; provided, that none of the Company or~~ nor any of its Subsidiaries shall ~~be required~~ take any action to comply with the foregoing that would breach any of Section 6.01(a) through (or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationshipsr). ~~In addition to and without~~ Without limiting the generality of the foregoing, ~~during~~ from the ~~Pre-Closing Period~~date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement, except (x) as required by Applicable Law, (wy) ~~expressly~~ as set forth in Section 6.01 of the Company Disclosure Schedule, or (z) as otherwise required or expressly ~~contemplated~~ permitted by this Agreement, without Parent’s prior written consent (~~x) set forth in Section 5.01 of the Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such~~ which consent shall not to be unreasonably withheld, conditioned or ~~delayed~~delayed (other than with respect to Section 6.01(c) or Section 6.01(d)), the Company shall not, and shall cause each of its Subsidiaries not to: (a) adopt or propose any change to its certificate of incorporation, bylaws or other organizational documents (whether by merger, consolidation or otherwise) (including the Company Organizational Documents); (b) (i) merge or consolidate with any other Person, (ii) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property, other than (A) acquisitions of assets, securities or property in the ordinary course of business consistent with past practice in an amount not to exceed $25,000,000 in the aggregate for all such acquisitions, (B) acquisitions of securities under the Company’s investment portfolio consistent with the Company’s investment policy in effect as of the date hereof, (C) acquisitions of any interest in partnerships, joint ventures or similar entities in an amount not to exceed $25,000,000 in aggregate purchase price for all such interests and (D) transactions (1) solely among the Company and one or more of its wholly owned Subsidiaries or (2) solely among the Company’s wholly owned Subsidiaries, or (iii) adopt or publicly propose a plan of complete or partial liquidation, dissolution, recapitalization, restructuring or other reorganization, or resolutions providing for or authorizing such a liquidation, dissolution, recapitalization, restructuring or other reorganization; (c) (i) split, combine or reclassify any Company Securities (whether by merger, consolidation or otherwise) (other than transactions (1) solely among the Company and one or more of its wholly owned Subsidiaries or (2) solely among the Company’s wholly owned Subsidiaries), (ii) amend any term or alter any rights of any of Company Securities (whether by merger, consolidation or otherwise), (iii) declare, set aside or pay or make any dividend or any other distribution (whether in cash, stock, property or any combination thereof) in respect of any Company Securities or Company Subsidiary Securities (other than dividends or distributions by a Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company) (in the case of this clause (iii), other than (A) in the case of the Company, (x) regular cash dividends in the ordinary course of business consistent with past practice (including with respect to record and payment dates) in an amount not to exceed $0.14 per share of Company Common Stock per quarter (appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or other similar events relating to Company Common Stock) or (y) dividends required to be paid in accordance with the terms of the Company Series A Preferred Stock and the Company Series B Preferred stock, in each case, as in effect on the date of this Agreement or (B) dividends or distributions by a Subsidiary of the Company to the Company or a Subsidiary of the Company), or (iv) redeem, repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or Company Subsidiary Securities, other than repurchases of shares of Company Common Stock in connection with the exercise of Company Stock Options or the vesting or settlement of Company RSU Awards (including any DERs credited thereon), Company PSU Awards (including any DERs credited thereon), Company Director Restricted Stock Awards and Company Director Deferred RSU Awards (including any DERs credited thereon), in each case in accordance with the terms the Company Stock Plans and of such Company Equity Awards; (d) issue, deliver or sell, or authorize the issuance, delivery or sale of, any Company Securities or Company Subsidiary Securities, other than (i) the issuance of any shares of Company Common Stock upon the exercise of Company Stock Options, the vesting or settlement of shares of Company RSU Awards (including any DERs credited thereon), Company PSU Awards (including any DERs credited thereon), Company Director Restricted Stock Awards and Company Director Deferred RSU Awards (including any DERs credited thereon) in accordance with the terms of the Company Stock Plans and such Company Equity Awards, (ii) the grant of any Company Equity Award in accordance with Section 6.01(l) of the Company Disclosure Schedule, (iii) the issuance of any Company Subsidiary Securities to the Company or any wholly owned Subsidiary of the Company or (iv) the issuance of any shares of Company Common Stock necessary to comply with applicable regulatory capital requirements; (e) authorize, make or incur any capital expenditures or obligations or liabilities in connection therewith, other than (i) as contemplated by the capital expenditure budget that has been made available to Parent prior to the date of this Agreement and is set forth on Section 6.01(e) of the Company Disclosure Schedule and (ii) any other capital expenditures not to exceed $2,500,000 in the aggregate; (f) sell, lease, license, sublicenses, transfer or otherwise dispose of (by merger, consolidation, sale of stock or assets or otherwise), or fail to take any action necessary to maintain, enforce or protect, directly or indirectly, any Subsidiary or any division thereof or of the Company or any assets, securities, interests, businesses or property, other than (i) in the ordinary course of business consistent with past practice for fair market value in an amount not to exceed $25,000,000 in the aggregate, (ii) dispositions of securities under the Company’s investment portfolio consistent with the Company’s investment policy in effect as of the date hereof, or (iii) transactions (A) solely among the Company and one or more of its wholly owned Subsidiaries or (B) solely among the Company’s wholly owned Subsidiaries; (g) sell, assign, license, sublicense, abandon, allow to lapse, transfer or otherwise dispose of (by merger, consolidation, sale of stock or assets or otherwise), create or incur any Lien (other than a Permitted Lien) on or otherwise fail to take any action necessary to maintain, enforce or protect, directly or indirectly, any of the Company’s material Owned Intellectual Property or Licensed Intellectual Property, other than in the ordinary course of business consistent with past practice (i) pursuant to non-exclusive licenses or (ii) for the purpose of disposing of obsolete or worthless assets; (i) make any loans or extensions of credit (except for loans under Regulation T, Regulation U and/or the Community Reinvestment Act of 1977) in excess of $10,000,000 in a single transaction or renewals of loans or extensions of credit in excess of $25,000,000, in each case (it being understood that Parent shall be required to respond to any request for a consent to make such loan or extension of credit in writing within two (2) business days after the loan package is delivered to Parent), or make any advances or capital contributions to, or investments in, any other Person, other than loans, advances or capital contributions (A) by the Company to one or more of its wholly owned Subsidiaries or (B) by any Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company, or (ii) other than in connection with ordinary course activities related to the operations of the Company Bank Subsidiary or the Company Broker-Dealer Subsidiary, incur, assume, suffer to exist or otherwise be liable with respect to, or guarantee or repurchase, or enter into any Contract with respect to (in each case, whether evidenced by a note or other instrument, pursuant to an issuance of debt securities, financing lease, sale-leaseback transaction or otherwise), any indebtedness for borrowed money, other than any issuances of subordinated debt necessary to comply with applicable regulatory capital requirements or additional borrowings under or refinancings or renewals (of an equivalent or lesser principal amount except any increase in the principal amount by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing or renewal) of the Company Debt on standard market terms available at such time (provided that no such renewals or refinancings shall include prepayment penalties); (i) create or incur any Lien (except for a Permitted Lien) on any material asset other than Liens created or incurred under the Company Debt or Company Notes or similar Liens under any other permitted indebtedness under Section 6.01(h)(ii), and Liens on assets subject to capital leases entered into in the ordinary course of business; (i) enter into any Company Material Contract (including (x) by amendment of any Contract that is not a Company Material Contract such that such Contract becomes a Company Material Contract or (y) through acquisition of a subsidiary that is bound by a Company Material Contract) (in each case, other than in the ordinary course of business with respect to a Company Material Contract solely of a type described in Section 4.20(a)(i), Section 4.20(a)(iii), Section 4.20(a)(iv), Section 4.20(a)(v), Section 4.20(a)(vii) and, to the extent permitted under Section 6.01(b)(ii)(C), Section 4.20(ix)), (ii) terminate, renew, extend or amend in any material respect any Company Material Contract or waive any material right thereunder (other than in the ordinary course of business with respect to a Company Material Contract described in Section 4.20(a)(i) and not described in any other clause of Section 4.20(a)); provided, however that nothing in this Section 6.01(j) shall prevent or restrict the Company and its Subsidiaries from entering into, renewing, extending or amending any customer Contract (other than any such Contract described in any clause of Section 4.20(a) other than Section 4.20(a)(i)) with respect to the Company’s corporate services business; (k) terminate, amend or modify any material Company Permit in a manner material and adverse to the Company and its Subsidiaries, taken as a whole; (l) except as required by any Company Employee Plan as in effect as of the date hereof, (i) grant any change in control, retention, severance or termination pay to (or amend any existing arrangement with) any of their respective current or former Company Service Providers, (ii) except as in the ordinary course of business consistent with past practices, enter into any employment, offer letter, term sheet, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any of their respective current or former Company Service Providers, (iii) establish, adopt, amend or enter into any material Company Employee Plan, other than in connection with routine, immaterial or ministerial amendments to health and welfare plans that do not materially increase benefits or result in a material increase in administrative costs, or Company Collective Bargaining Agreement, (iv) grant any equity or equity-based awards to, or discretionarily accelerate the vesting or payment of any such awards held by, any current or former Company Service Provider, (v) increase the compensation, bonus or other benefits payable to any of their respective current or former Company Service Providers, (vi) hire any Key Employees or (vii) terminate (other than for cause) any Key Employees; (m) make any material change in any method of accounting or accounting principles or practice, except for any such change required by reason of a change in GAAP or Regulation S-X under the Securities Exchange Act (“Regulation S-X”), as approved by its independent public accountants; (n) enter into any material new line of business; (i) make or change any material Tax election; (ii) change any annual Tax accounting period; (iii) adopt or change any material method of Tax accounting; (iv) enter into any material closing agreement with respect to Taxes (other than a closing agreement described in clause (v) of this Section 6.01(o)); or (v) settle or surrender (including by entering into a closing agreement) any Tax claim, audit or assessment involving potential payments, or reductions in deferred tax assets, by the Company and its Subsidiaries in excess of $5,000,000; (p) settle or compromise, or offer or propose to settle or compromise, any claim, action, suit, dispute, investigation, regulatory examination, arbitration, or other Proceeding, whether pending or threatened, (i) involving or against the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice (provided that any individual settlement or compromise or any series of related settlements or compromises involving payments by the Company and its Subsidiaries in excess of $5,000,000 individually or $15,000,000 in the aggregate (in each case, net of any amounts that may be paid under one or more existing insurance policies) or providing for any non-monetary relief shall be deemed not to be in the ordinary course of business), (ii) that relates to the Transactions or (iii) initiated by a stockholder of the Company; (q) enter into or materially expand any business outside of the U.S. and its territories; or (r) agree, resolve, authorize, commit or propose to do any of the foregoing.

Appears in 1 contract

Samples: Merger Agreement (E Trade Financial Corp)

Conduct of the Company. ~~From~~ The Company agrees that between the date of this Agreement ~~until~~ and the ~~Closing~~ Effective Time or the ~~earlier termination of~~ date, if any, on which this Agreement is terminated pursuant to Section 8.01, except (a) as set forth in ~~accordance with Article 8~~ Schedule 6.01, (~~the “Pre-Closing Period”~~b) as expressly required pursuant to or expressly permitted by this Agreement (including Section 6.02 and Section 6.03), ~~except~~ (c) as required by Applicable Law or (d) as consented to in writing in advance by Parent, the Company shall (i) ~~expressly required or expressly contemplated by this Agreement~~conduct its businesses in all material respects in the ordinary course consistent with past practice, (ii) use commercially reasonable efforts to preserve materially intact its current business organization and to preserve in all material respects the relationships of the Company and its Subsidiaries with Company Franchisees and the franchise system as a whole, employees, suppliers, licensors, licensees, distributors, wholesalers, lessors and others having business dealings with the Company or any of its Subsidiaries, (iii) use commercially reasonable efforts to keep and maintain the assets and properties of the Company and its Subsidiaries in accordance with past practice, normal wear and tear excepted, and (iv) comply in all material respects with Applicable Law. Without limiting the generality of the foregoing, except (a) as set forth in Schedule 6.01, (b) as expressly required pursuant to or expressly permitted by this Agreement (including Section 6.02 and Section 6.03), (c) as required by Applicable Law, or (d) as consented to in writing in advance by Parent (which consent shall not be unreasonably withheld, delayed or conditioned with respect to clauses (e)(C), (k), (l), (m), (q) or (r) of this Section 6.01), the Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.01, the Company shall not, and shall not permit any of its Subsidiaries to: (a) amend the Company’s Governing Documents or other comparable charter or organizational documents of the Company’s Subsidiaries (whether by merger, consolidation or otherwise); (i) establish a record date for, declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or other equity, property or otherwise, including any combination thereof) in respect of, or enter into any Contract with respect to the voting of, any capital stock of the Company or any capital stock or other Equity Interests of its Subsidiaries, other than (x) regular quarterly cash dividends consistent with past practice and (y) dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to the Company or any of the Company’s other wholly owned Subsidiaries, (ii) adjust, recapitalize, combine, split, combine, subdivide or reclassify any Company Securities or any capital stock or other Equity Interests, or securities convertible, exchangeable or exercisable for capital stock or other Equity Interests, of its Subsidiaries, (iii) except as otherwise provided in Section 6.01(c), issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, any Company Securities or any shares of capital stock or other Equity Interests, or securities convertible, exchangeable or exercisable for capital stock or other Equity Interests, of its Subsidiaries or (iv) purchase, redeem or otherwise acquire any Company Securities, except for acquisitions of shares of Company Common Stock by the Company in accordance with the terms of Company Equity Awards in effect as of the date hereof; (i) issue, deliver, sell, grant, pledge, transfer, subject to any Lien or otherwise dispose of any Company Securities, other than (w) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options or upon the settlement of Company RSUs, in each case, that are outstanding on the date of this Agreement and in accordance with the applicable equity award’s terms (x) the issuance of shares of the Company Common Stock in accordance with the provisions of Section 2.06(d) hereof or (y) grants or awards of Company Securities required to be made pursuant to the terms of existing employment or other compensation agreements or arrangements in effect as of the date hereof and that are set forth in Section ~~5.01~~ 4.13(a) of the Company ~~Letter~~Disclosure Schedule or (ii) amend any term of any Company Security or any outstanding share of capital stock of, or other Equity Interest or voting security in, any Subsidiary of the Company (~~iii~~in each case, whether by merger, consolidation or otherwise); (d) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization with respect to the Company or any of its Subsidiaries; (e) except (i) as required by ~~applicable Law~~ the terms of any Company Benefit Plan in effect on the date hereof or (ivii) ~~consented~~ to ~~in advance in writing by Parent~~ the extent necessary to comply with, or ~~Buyer (such consent not~~ satisfy an exemption from, Section 409A of the Code without increasing the benefits provided to ~~be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to~~any Person, (A) ~~conduct~~ increase the compensation or other benefits payable or to become payable to officers, directors or employees of the Company, (B) grant any officer, director, or employee of the Company or any of its ~~business~~ Subsidiaries any increase in ~~all material respects~~ severance or termination pay, (C) enter into any employment, consulting, severance or termination agreement with any officer, director or senior employee of the Company or any of its Subsidiaries, except for store-level employees in the ordinary course of business consistent with past practice, (D) establish, adopt, amend or enter into any (1) collective bargaining agreement or other agreement with a labor union, works council or similar organization or (2) Company Benefit Plan, or (E) accelerate any rights or benefits, or make any material determinations, under any Company Benefit Plan; provided, however, the foregoing clauses (A), (B) use its reasonable best efforts to preserve intact in all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services of its present officers and key employees and (C) ~~use commercially reasonable efforts to undertake~~ shall not restrict the ~~actions enumerated~~ Company from entering into, or making available, plans, agreements, benefits and compensation arrangements (including grants under any Company Benefit Plan) for newly hired employees or employees in ~~Section 5.01-1~~ the context of bona fide individualized promotions, in each case whose annual base compensation is less than $200,000 and in the ordinary course of business and consistent with past practice; (i) sell or acquire (A) any real property (regardless of the consideration payable therefor), (B) any business or capital stock or other securities of or all or substantially all of the assets of any Person or division thereof, whether in whole or in part (and whether by purchase of stock, purchase of assets, merger, consolidation, or otherwise), (C) any material amount of assets, securities, properties, or interests for consideration, in the case of clauses (B) and (C), in excess of $5,000,000 in the aggregate, or (D) any assets, securities, properties or interests to or from any Company ~~Letter~~Franchisee or (ii) enter into any joint venture, strategic alliance or arrangement or make any investment; (g) agree to any exclusivity, non-competition or similar provision or covenant restricting the Company, any of its Subsidiaries or any of their respective Affiliates, from competing in any line of business or with any Person or in any area; (h) make any material change to any of the accounting methods, principles or practices used by the Company, except for such changes that are required by GAAP or Regulation S-X promulgated under the Exchange Act; (i) (i) incur or assume any long-term or short-term indebtedness except for incremental borrowings under the Company Existing Credit Facility in the ordinary course of business consistent with past practice up to a total amount outstanding as of the Closing Date of $115,000,000, or issue any debt securities; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other Person for borrowed money; (iii) make any loans, advances or capital contributions to, or investments in, any other Person in a material amount; or (iv) cancel any material indebtedness or waive any claims or rights of substantial value, in each case, other than in the ordinary course of business; (j) make, change, or revoke any material Tax election; file any amended income or other material Tax Return; change any annual Tax accounting period; adopt or change any method or practice of Tax accounting; enter into any closing agreement, Tax sharing agreement or Tax indemnity agreement; settle, compromise, concede or abandon any Tax contest or Tax claim, audit or assessment with respect to a material amount of Taxes; surrender any right to claim a material Tax refund; or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; (k) make any capital expenditures or incur any obligations or liabilities in respect thereof, except in accordance with the capital expenditures budget for the Company made available to Parent; (l) settle any claim or litigation, in each case, made by or pending against the Company or any of its Subsidiaries, or any of its or their respective officers and directors in their capacities as such, other than the settlement of claims or litigation in the ordinary course of business consistent with past practice that do not require payment by the Company or any Subsidiary of an amount in excess of $350,000 individually or $1,000,000 in the aggregate; provided, however, neither the Company nor any Subsidiary thereof shall be permitted to settle any claim or litigation that ~~none~~ would involve injunctive or equitable relief, impose any restrictions or changes on the business or operations of the Company or any of its Subsidiaries or of any present or future Affiliate of the Company or any of its Subsidiaries (including, after the Effective Time, Parent and its other Subsidiaries), or involve any admission of any wrong doing by the Company or any of its Subsidiaries; (i) modify, amend, waive or fail to enforce, in each case in any material respect, or assign to any Third Party or terminate any (A) Material Contract, or (B) franchise Contract, development Contract or similar Contract with any Company Franchisee other than extension for time or temporary and short-term modifications of royalty payments in the ordinary course of business consistent with past practice, or (ii) enter into a Contract (A) that would, if entered into prior to the date hereof, be a Material Contract, other than supply Contracts entered into in the ordinary course of business (provided, that the Company shall provide reasonable advance notice to, and reasonably consult with Parent, prior to entering into a supply Contract with a term of longer than 1 year or that would not be terminable upon thirty (30) days’ notice or less without material payment or penalty) or (B) that is a franchise Contract, development Contract or similar Contract with a Company Franchisee, other than, in the case of this clause (B), such Contracts entered into in the ordinary course that are substantially on the Company’s standard form; (n) sell, assign, lease, license, sublicense, terminate, abandon, waive, allow to lapse or otherwise transfer or dispose of, create or incur any Lien (other than Permitted Liens) on, or grant any interest in or rights with respect to, any Company Intellectual Property (except for licenses contained in franchise Contracts, development Contracts or similar Contracts with Company Franchisees entered into in the ordinary course of business and that conform in all material respects with the Company’s standard form of such Contracts as of the date hereof); (o) implement any employee layoffs that would reasonably be expected to implicate the WARN Act; (p) authorize, commit or agree to take any of the foregoing actions; (q) except as required by any Contract entered into, and made available to Parent prior to, the date of this Agreement, open any restaurant in a country or state where the Company or a Subsidiary thereof does not currently have an owned or franchised restaurant, or otherwise engage in any other operations in any country or state in which the Company or a Subsidiary thereof does not currently conduct other operations; or (~~or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed~~r) make any ~~payments~~ material change to the terms of the Company’s or any of its Subsidiaries’ system-wide or region-wide policies or procedures with respect to its relationships with any Company Franchisees, including any existing or new policies relating to (i) system-wide or region-wide Company Franchisee rent, royalty or other fees and charges, or maintenance of advertising funds, (ii) system-wide or region-wide franchisee incentives or franchisee economic assistance, or (iii) mandates relating to equipment, hardware or software (except for technical updates to existing system-wide or region-wide mandates in the ordinary course of business ~~relationship counterparties~~consistent with past practice) (provided that in all cases the Company shall provide reasonable advance notice to, ~~beyond~~ and reasonably consult with, Parent prior to any taking such actions in this clause (r)). Notwithstanding the foregoing, (x) nothing contained in this Agreement shall give to Parent or Merger Sub, directly or indirectly, rights to control or direct the operations of the Company and its Subsidiaries prior to the Effective Time, (y) prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations and (z) nothing contained in this Agreement shall prevent the Company and its Subsidiaries from buying restaurant locations from, or selling restaurant locations to, existing Company Franchisees (provided, however, that ~~paid~~ the Company shall provide reasonable advance notice to, and reasonably consult with, Parent prior to selling or agreeing to sell any restaurant location owned by the Company on the date of this Agreement), entering into franchise and development agreements in the ordinary course of business in ~~order~~ a manner consistent with clause (m) above, or opening or closing restaurant locations in accordance with plans previously furnished to ~~maintain such business relationships. In addition to~~ Parent (including leasing, purchasing and ~~without limiting the generality~~ disposing of ~~the foregoing~~real property in connection therewith), ~~during the Pre-Closing Period, except as (w) expressly required~~ and provided that any sales or ~~expressly contemplated~~ grants of new franchise and development agreements by ~~this Agreement, (x) set forth in Section 5.01 of~~ the Company ~~Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not,~~ and ~~shall cause~~ its Subsidiaries ~~not to:~~are conducted in compliance with all Franchise Laws and any other Applicable Laws.

Appears in 1 contract

Samples: Merger Agreement (Jack in the Box Inc /New/)

Conduct of the Company. ~~From~~ (a) Except (u) to the ~~date of this Agreement until the Closing or the earlier termination of this Agreement in accordance with Article 8~~ extent required by applicable Law (~~the “Pre-Closing Period”~~including any COVID-19 Measures), ~~except~~ (v) as ~~(i)~~ otherwise expressly ~~required or expressly contemplated~~ permitted by this Agreement, (iiw) as the Company reasonably determines is necessary to consummate the Pre-Closing Steps, (x) as set forth in Section ~~5.01~~ 7.1(a) of the Company ~~Letter~~Disclosure Schedule, (~~iii~~y) for any action taken or omitted to be taken, by any member of the Company Group pursuant to any COVID-19 Measures or which is otherwise taken, or omitted to be taken, by any member of the Company Group to protect the business of the Company Group in response to COVID-19 or any other pandemic, epidemic or disease outbreak, as determined by the Company in its reasonable discretion, or (z) with the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) (i) Seller shall not assign, sell or transfer, or authorize or enter into any Contract for the assignment, sale or transfer of, or pledge or xxxxx x Xxxx with respect to any of the Shares and (ii) the Company shall cause each member of the Company Group to use commercially reasonable efforts to (A) conduct its business and operations in the ordinary course, (B) preserve the present goodwill and ongoing operations of its business (including the goodwill of its material customers, suppliers, vendors, service providers, personnel and others having material business relations with it) and (C) pay franchise taxes on behalf of the Company as and when due in a manner consistent with past practice. For the avoidance of doubt, the Company shall not be in violation of its obligations under this Section 7.1(a) as a result of the Company’s failure to take any action that is prohibited by Section 7.1(b). (b) Without limiting the generality of the foregoing, except (u) to the extent required by applicable Law (including any COVID-19 Measures), (v) as otherwise expressly permitted by this Agreement, (w) as the Company reasonably determines is necessary to consummate the Pre-Closing Steps, (x) as set forth in Section 7.1(b) of the Company Disclosure Schedule, (y) for any action taken or omitted to be taken, by any member of the Company Group pursuant to any COVID-19 Measures or which is otherwise taken, or omitted to be taken, by any member of the Company Group to protect the business of the Company Group in response to COVID-19 or any other pandemic, epidemic or disease outbreak, as determined by the Company in its reasonable discretion (provided that nothing in this subclause (y) shall permit Company to take any action described in clause (xvii)(y)(ii) below), or (ivz) ~~consented to in advance in writing by Parent or~~ with the prior written consent of Buyer (~~such~~ which consent shall not to be unreasonably withheld, conditioned or delayed), during the period from the date hereof to the Closing Date, the Company ~~shall, and~~ shall cause each member of the Company Group not to: (i) modify or amend any of the Governing Documents of any member of the Company Group; (ii) issue, authorize for issuance, sell, grant or subject to any Lien (other than Permitted Liens) any of the Equity Securities of the Company or any Company Incentive Equity or Seller profits interest awards or amend or alter any Equity Securities (including any vesting schedule or acceleration thereof); provided, however, notwithstanding the foregoing, the Company may accelerate, or cause to be accelerated, the vesting of any unvested Company Incentive Equity to provide that such Company Incentive Equity shall become fully vested as of immediately prior to the Closing Date, and, for the avoidance of doubt, treated as a Vested Company RSU pursuant to Section 2.4(a) or vested Foreign Phantom Award pursuant to Section 2.4(c), as applicable; (iii) split, combine, redeem or reclassify, or purchase or otherwise acquire any of the Equity Securities of the Company; (iv) authorize, declare, set aside for payment or pay any non-cash dividends or make any non-cash distributions in respect of, or repurchase or redeem, any of its ~~Subsidiaries to~~Equity Securities except (x) as set forth in Section 7.1(b)(iv) of the Company Disclosure Schedule, and (y) dividends and distributions by any member of the Company Group to any other member of the Company Group; (v) enter into any Contract of the type described in Section 4.11(a)(vi); (vi) make any acquisitions of (including by merger, consolidation or acquisition of stock or assets or any other business combination) any Person or any division thereof or Equity Securities therein or a substantial portion of the assets thereof; (vii) divest, sell or otherwise dispose of, or encumber any of its material assets, rights and properties, other than (x) sales of products or services in the ordinary course of business, (y) licensing to customers, end users, partners and service providers in the ordinary course of business, and (z) in connection with the prosecution and maintenance of Company Intellectual Property, in each case, in the ordinary course of business; (viii) license, sell, assign, lease, terminate, abandon, transfer or otherwise dispose of or grant any security interest in or to any Company Intellectual Property other than (i) Intellectual Property that is no longer used by the Company Group or that the Company Group determines is no longer commercially reasonable to retain, (ii) transfers to other members of the Company Group, or (iii) non-exclusive licenses to customers, end users, partners and service providers granted in the ordinary course of business; (A) ~~conduct its business~~ develop, create or invent any material Intellectual Property jointly with any third party, unless such Intellectual Property is subject to a Contract which vests the ownership of such Intellectual Property in ~~all material respects~~ the Company or is on behalf of a customer in the ordinary course of business, (B) disclose, or permit the disclosure of, any confidential Company Intellectual Property, unless such Company Intellectual Property is subject to a confidentiality or non-disclosure covenant protecting against disclosure thereof or (C) allow any Company Intellectual Property to become abandoned, dedicated, disclaimed, or lapse, provided that the Company shall not be required to make any filings, registrations or take any prosecution or other actions with respect to such Company Intellectual Property that it would not take in the ordinary course of business consistent with past practice; (x) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization; (xi) enter into, adopt, amend or terminate any material Company Benefit Plan (other than (A) employment agreements with non-officer employees whose annual base compensation is not in excess of $300,000 terminable by the Company Group for any reason upon less than thirty (30) days’ notice without incurring any liability in excess of statutory requirements, (B) use its reasonable best efforts to preserve intact in all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of the Company or any of its Subsidiaries shall be required to (or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business with respect to health and welfare benefit plans and (C) transaction bonuses that are included as Seller Expenses (provided that if (i) any transaction bonus for an individual person exceeds $75,000 or (ii) the aggregate transaction bonuses for all persons exceeds $750,000, the Company shall provide at least two (2) Business Days’ notice to Buyer prior to granting such transaction bonuses), and (D) as permitted in ~~order~~ Section 7.1(b)(ii)), except as expressly contemplated by this Agreement or as required by the terms of an existing Company Benefit Plan; (xii) make any material increase in the compensation or employee benefits to ~~maintain such business relationships. In addition to and without limiting the generality~~ or in respect of any executive, officer or director of any member of the ~~foregoing~~Company Group, ~~during~~ except (x) to the extent required by an existing Company Benefit Plan or (y) for increases in base salary in the ordinary course of business for non-officer employees whose annual base compensation (after giving effect to such increase) is not in excess of $300,000; (xiii) enter into any collective bargaining or other agreement with any Union; (xiv) file or cause to be filed any amended Tax Return, make any income or other material Tax elections in a manner that is not consistent with past practice, change any annual Tax accounting period, adopt (outside the ordinary course of business) or change any method of Tax accounting, or agree to extend or waive the statute of limitations in respect of the assessment or determination of any income or other material Taxes except in the ordinary course of business, or enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund for income or other material Taxes; (xv) change its accounting policies or procedures except to the extent required to conform with GAAP, or materially change any policies or procedures related to the collection, receipt or deferral of receivables or payables; (xvi) change its fiscal year; (xvii) except in the ordinary course of business, (i) (A) enter into any Contract that, had it been entered into prior to the date of this Agreement, would be a Material Contract, or (B) materially amend, modify, terminate, extend or waive or grant any consents under any material provisions of (x) any existing Material Contract or (y) any Contract that, had it been entered into prior to the date of this Agreement, would be a Material Contract or (ii) engage in or enter into any Company Related Party Transaction; (xviii) (A) waive, release, assign, settle or compromise any material Action, except for such waiver, release, assignment, settlement or compromise that involves an unconditional written release of the Company Group and Buyer and its Subsidiaries, provides for no remedy other than the payment of money damages which are paid in full by the Company prior to the Reference Time and does not involve any admission of culpability by the Company Group or impose any restrictions of any kind on Buyer and its Subsidiaries following the Closing, or (B) commence any material Action which would involve the payment by the Company Group in excess of $100,000 in the aggregate; (xix) enter into any new line of business, other than as contemplated by the Company business plans provided to Buyer prior to the date hereof; (xx) make any loans, advances or capital contributions to, or investments in, any other Person, except for (i) such loans, advances or capital contributions between and among members of the Company Group and solely to the extent permitted under the Credit Documents, (ii) such loans provided under any retirement plan intended to be qualified under Section 401(a) of the Code and except in the ordinary course of business to any individual service provider of the Company Group, and (iii) the reimbursement of expenses of employees in the ordinary course of business; (xxi) hire, engage or terminate (other than a termination for cause) the employment or engagement of any employee or individual independent contractor with annual base compensation in excess of $300,000; (xxii) make any capital expenditures in excess of the amounts contemplated to be made in the budget for the Company Group provided to Buyer prior to the date hereof; (xxiii) materially amend, modify or terminate the Pre-Closing ~~Period~~Steps or any part thereof; or (xxiv) authorize, ~~except as~~ agree, resolve, commit or consent to any of the foregoing. (wc) ~~expressly required~~ Without limiting the provisions of Section 7.1(a) or ~~expressly contemplated by~~ Section 7.1(b) in any respect, nothing contained in this ~~Agreement~~Agreement is intended to give to Buyer, ~~(x) set forth in Section 5.01~~ directly or indirectly, rights to control or direct the operations of the Company ~~Letter~~Group. Prior to the Closing Date, (ywithout limiting the provisions of Section 7.1(a) ~~required by applicable Law~~ or (zSection 7.1(b) ~~consented to~~ in ~~advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed)~~any respect, the Company shall ~~not~~exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its operations and the operations of its Subsidiaries. Notwithstanding the provisions of Section 7.1(a) or Section 7.1(b), nothing herein shall ~~cause its Subsidiaries not to:~~be construed to restrict any member of the Company Group from making cash dividends that are declared and paid prior to the Reference Time.

Appears in 1 contract

Samples: Share Purchase Agreement (PTC Inc.)

Conduct of the Company. From the date ~~of this Agreement~~ hereof until the ~~Closing or the earlier termination of this Agreement in accordance with Article 8 (the “Pre-Closing Period”)~~Effective Time, except as ~~(i) expressly required or~~ expressly contemplated by this Agreement, ~~(ii)~~ as set forth in Section ~~5.01~~ 6.01 of the Company ~~Letter~~Disclosure Schedule, ~~(iii) required by applicable Law or (iv)~~ as consented to in ~~advance in~~ writing by ~~Parent~~ Parent, as contemplated by or ~~Buyer~~ rea- sonably necessary to implement the Company Operating Plan (or, with respect to any initiative therein, reallocations among line items within such ~~consent~~ initiative that are not in the aggregate more burdensome to ~~be unreasonably withheld, conditioned~~ the Company in any material respect) or ~~delayed)~~as required by Applicable Law, the Company shall, and shall cause each of its Subsidiaries to, ~~(A)~~ conduct its business in all material respects in the ordinary course ~~of business~~ consistent with past ~~practice~~practice and use its commercially reasonable efforts to (i) preserve intact its business organization, (Bii) ~~use~~ maintain in effect all of its ~~reasonable best efforts to preserve intact in all~~ material ~~respects~~ for- eign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations, and (iii) maintain its ~~business organization~~ existing relationships with its material customers, lenders, suppliers and others having material business relationships with ~~suppliers, vendors,~~ it and with Governmental ~~Authorities, Customers and other Persons~~ Authorities with ~~which~~ ju- risdiction over the Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of the Company or any of its Subsidiaries shall be required to (or shall without ParentCompany’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationshipsoperations. ~~In addition to and without~~ Without limiting the generality of the foregoing, ~~during~~ from the ~~Pre-Closing Period~~date hereof until the Effective Time, except as ~~(w) expressly required or~~ expressly contemplated by this Agreement, ~~(x)~~ as set forth in Section ~~5.01~~ 6.01 of the Company ~~Letter~~Disclosure Schedule, ~~(y) required by applicable Law or (z)~~ as consented to in ~~advance in~~ writing by ~~Parent or Buyer~~ Par- ent (solely in the case of the following clauses (d), (e), (f), (g), (h), (i), (j) and (p), such consent not to be unreasonably withheld, conditioned or delayed), as contemplated by or reasonably nec- xxxxxx to implement the Company Operating Plan (or, with respect to any initiative therein, real- locations among line items within such initiative that are not in the aggregate more burdensome to the Company in any material respect) or as required by Applicable Law, the Company shall not, ~~and~~ nor shall ~~cause~~ it permit any of its Subsidiaries ~~not~~ to: (a) amend its certificate of incorporation, bylaws or other similar organiza- tional documents (whether by merger, consolidation or otherwise); (b) split, combine or reclassify any shares of capital stock of the Company or any of its Subsidiaries or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the capital stock of the Compa- ny or its Subsidiaries, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities, except for (i) dividends by any of its wholly owned Subsidiaries, (ii) regular quarterly cash dividends with customary record and payment dates on the shares of the Company Stock not in excess of $0.75 per share per quarter, (iii) repurchases of shares of Company Stock in the ordinary course of business consistent with past practices (including as to volume) at then prevailing market prices pursuant to the Company’s share repurchase program as in effect from time to time and (iv) ac- quisitions, or deemed acquisitions, of Company Stock in connection with (A) the payment of the exercise price of Company Stock Options with Company Stock (including in connection with “net exercises”) and (B) required Tax withholding in connection with the exercise of Company Stock Options and the vesting or settlement of Company RSUs, in each case, to the extent such Company Stock Options and Company RSUs are outstanding on the date of this Agreement (and in such case, in accordance with their terms on the date of this Agreement) or are issued or granted after the date of this Agreement as permitted by Section 6.01(c)(i)(B); (c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company Securities or Company Subsidiary Securities, other than (A) the issuance of any shares of the Company Stock upon (x) the exercise of Company Stock Options or (y) up- on the settlement of any Company RSUs; and (B) annual director equity grants made in accord- ance with this Agreement; (C) equity grants to new hires or promoted employees in the ordinary course of business consistent with past practice; and (D) the grant of Company RSUs contem- plated by Section 7.09 of the Company Disclosure Schedule, and in the case of grants under clauses (B), (C) and (D), provided that such grants shall be made on terms and conditions used by the Company with respect to Company RSUs in the ordinary course of business consistent with past practice and such other terms and conditions as set forth on Section 7.09 of the Com- pany Disclosure Schedule, or (ii) amend any term of any Company Security or any Company Subsidiary Security (in each case, whether by merger, consolidation or otherwise); (d) incur any capital expenditures or any obligations or liabilities in respect thereof, except for (i) those as may be contemplated by the plan described in Section 6.01(d) of the Company Disclosure Schedule and (ii) any other capital expenditures not to exceed $200,000,000 in the aggregate in any twelve-month period; (e) acquire (by merger, consolidation, acquisition of stock or assets or other- wise), directly or indirectly, any assets, securities, properties, interests or businesses, other than (i) supplies and materials in the ordinary course of business of the Company and its Subsidiaries in a manner that is consistent with past practice, (ii) pursuant to contracts or arrangements in ef- fect on the date hereof, (iii) leases or subleases under which the Company or one of its Subsidiar- ies is the tenant entered into in the ordinary course of business and (iv) acquisitions with a pur- chase price (including assumed indebtedness) that does not exceed $100,000,000 in the aggre- gate; (f) sell, license, lease or otherwise transfer, or create or incur any Lien on, any of the Company’s or its Subsidiaries’ assets, securities, properties, interests or businesses, other than (i) sales of inventory or obsolete equipment in the ordinary course of business con- sistent with past practice, (ii) sales of assets, securities, properties, interests or business with a sale price (including any related assumed indebtedness) that does not exceed $100,000,000 in the aggregate, (iii) pursuant to contracts or arrangements in effect on the date hereof, (iv) leases or subleases under which the Company or one of its Subsidiaries is the lessor entered into in the ordinary course of business, or (v) Permitted Liens; (g) other than in connection with actions permitted by Section 6.01(d) or (e) or as required by existing agreements set forth on Section 4.06(c) of the Company Disclosure Schedule, make any loans, advances or capital contributions to, or investments in, any other Per- son, other than (i) in the ordinary course of business consistent with past practice, (ii) invest- ments or capital contributions that are made alongside Parent or any of its Affiliates or (iii) loans, advances or capital contributions to, or investments in, wholly owned Subsidiaries of the Com- pany; (h) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof or issue or sell any debt securities, except for (i) indebtedness under any of the agreements set forth in Section 6.01(h)(i) of the Company Disclosure Schedule, (ii) up to $2,000,000,000 of indebtedness to refinance on market terms any indebtedness existing on the date hereof that is maturing within twelve months of such refinancing (which amount shall be reduced by any such refinanced indebtedness incurred under the immediately preceding clause (i)), (iii) guarantees by the Company of indebtedness of any wholly owned Company Subsidiary or (iv) any commercial paper issued in the ordinary course of business; (i) other than in the ordinary course of business, enter into any agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Subsidiaries from engaging or competing in any line of business, in any location or with any Per- son or (ii) enter into any agreement or arrangement that limits or otherwise restricts in any mate- rial respect any upstream Affiliates of the Company following consummation of the Mergers from engaging or competing in any line of business, in any location or with any Person; (j) other than in the ordinary course of business, (i) amend or modify in any material respect or terminate (excluding terminations upon expiration of the term thereof in ac- cordance with the terms thereof) any Company Material Contract or waive, release or assign any material rights, claims or benefits under any Company Material Contract, (ii) enter into any con- tract or agreement that would have been a Company Material Contract had it been entered into prior to the date of this Agreement or (iii) enter into, amend, modify or terminate any program- ming service distribution agreement; (k) without prior consultation with Parent, (i) recognize any material new un- ion, works council or other similar employee representative, except as required by Applicable Law, or (ii) enter into any material Collective Bargaining Agreement, or renew or enter into any material mid-term modification (excluding resolutions of grievances relating to or interpretations of a Collective Bargaining Agreement) of any existing Collective Bargaining Agreement; (l) except as set forth on Section 7.09 of the Company Disclosure Schedule, grant to any director or officer (as such terms are used for purposes of Section 16 of the 0000 Xxx) of the Company any increase in change in control, severance, retention or termination pay (including any obligation to gross-up, indemnify or otherwise reimburse any such individual for any Tax incurred by any such individual, including under Section 409A or 4999 of the Code), other than any increase in a severance benefit arising directly from an increase in annual salary or annual cash bonus opportunity (for the avoidance of doubt, excluding the 2015 Supplemental Bonus Opportunity) to the extent such increase is permitted by this Agreement; (m) except as set forth on Section 7.09 of the Company Disclosure Schedule, (i) increase the annual salary of any employee of the Company or any of its Subsidiaries who holds the title of Executive Vice President or greater by more than 5% in the aggregate in any fiscal year, except as required by the terms of any existing agreement or (ii) increase the cash bonus opportunity of any employee of the Company or any of its Subsidiaries who holds the title of Executive Vice President or greater; (n) except as set forth on Section 7.09 of the Company Disclosure Schedule, (i) other than as required by an existing agreement, adopt or amend any cash bonus plan or other variable compensation plan with a performance measurement period of greater than 12 months (excluding any period principally relating to an employee’s obligation to be employed on the payment date), (ii) establish or adopt any Title IV Plan, “excess benefit plan”, deferred compen- sation plan, severance or change in control plan or employee benefit plan that provides post- retirement health, medical, life insurance or death benefits to retired, current or former employ- ees, directors or consultants of the Company or any of its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code, unless such establishment or adoption occurs as part of an acquisition of any other company or business that is permitted or consented to under this Agreement, (iii) fail to continue to make all contributions required to be made to any Com- pany Plan that is a Title IV Plan (for the avoidance of doubt, other than a Multiemployer Plan) under ERISA, the Code and Applicable Law or (iv) amend the benefit formula under any Com- pany Plan that is a Title IV Plan (for the avoidance of doubt, other than any Multiemployer Plan) to increase the benefit accrual applicable to any participant or beneficiary thereof under such Company Plan; (o) change the Company’s methods of financial accounting, except as re- quired by concurrent changes in GAAP or in Regulation S-X of the 1934 Act, as agreed to by its independent public accountants; (p) without limiting Section 8.10, settle, or offer or propose to settle, (A) any litigation, investigation, arbitration, proceeding or other claim involving or against the Company or any of its Subsidiaries or (B) any stockholder litigation or dispute against the Company or any of its officers or directors, except, in each case, where the sum of (x) any amount paid in settle- ment or compromise plus (y) the financial impact to the Company and its Subsidiaries of any other terms of the settlement or compromise does not exceed $100,000,000 (after giving effect to any reasonably expected indemnification proceeds); (q) adopt or publicly propose a plan of complete or partial liquidation or reso- lutions providing for or authorizing such a liquidation or a dissolution, in each case, of the Com- pany or any Significant Subsidiary of the Company; (r) knowingly and intentionally take any action that would reasonably be ex- pected to make any representation or warranty of the Company hereunder inaccurate in any ma- terial respect at, or immediately prior to, the Effective Time; (s) take the action set forth on Section 6.01 of the Company Disclosure Schedule (it being understood and agreed that the exceptions contained in the lead-in to this Sec- tion 6.01 shall not apply with respect to this Section 6.01(s)); or (t) agree, resolve or commit to do any of the foregoing.

Appears in 1 contract

Samples: Merger Agreement

Conduct of the Company. From the date of this Agreement until the ~~Closing or~~ earlier to occur of the ~~earlier~~ Effective Time and the termination of this Agreement in accordance with Article ~~8 (the “Pre-Closing Period”)~~IX, except as ~~(i)~~ otherwise expressly ~~required~~ permitted or expressly contemplated by this Agreement, ~~(ii)~~ as set forth in Section ~~5.01~~ 5.1 of the Company Disclosure Letter, ~~(iii) required by applicable Law or (iv)~~ as consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed)) or as required by applicable Law, the Company shall, and shall cause each of its Subsidiaries to, (Ai) conduct its business in all material respects in the ordinary course of business consistent with past ~~practice~~practices and use reasonable best efforts to cause each of the Company Sharing Companies and their respective Subsidiaries to conduct its business in the ordinary course of business consistent with past practices, (Bii) use reasonable best efforts to maintain the Company Station Licenses and the rights of it, the Company Sharing Companies and their respective Subsidiaries thereunder and (iii) use its reasonable best efforts to preserve intact in all material respects its current business ~~organization~~ organization, ongoing businesses and ~~material business~~ significant relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of the Company or any of its Subsidiaries shall be required to (or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationshipsthird parties. ~~In addition to and without~~ Without limiting the generality of the foregoing, ~~during~~ from the ~~Pre-Closing Period~~date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article IX, except as ~~(w)~~ otherwise expressly ~~required~~ permitted or ~~expressly~~ contemplated by this Agreement, ~~(x)~~ as set forth in Section ~~5.01~~ 5.1 of the Company Disclosure Letter, ~~(y) required by applicable Law or (z)~~ as consented to ~~in advance~~ in writing by Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, conditioned or delayed)) or as required by applicable Law, the Company shall not, ~~and~~ nor shall ~~cause~~ it permit any of its Subsidiaries ~~not~~ to: (a) amend its certificate of incorporation, bylaws or other similar organizational documents (other than amendments to the organizational documents of any wholly owned Subsidiary of the Company that would not or would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger or the transactions contemplated hereby); (b) (i) other than (x) dividends and other distributions by a direct or indirect Subsidiary of the Company to the Company or any direct or indirect wholly owned Subsidiary of the Company or (y) quarterly dividends made by Company in an amount not to exceed $0.25 per share per quarter (with record and payment dates consistent with the record and payment dates applicable to the applicable quarterly cash dividend in the year prior to the date hereof), declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock or other equity securities, (ii) split, recapitalize, subdivide, combine or reclassify any of its capital stock or other Company Securities or issue or authorize the issuance of any other securities in respect of, or in substitution for, outstanding shares of capital stock of the Company or (iii) purchase, redeem or otherwise acquire any shares of capital stock of the Company, except, in the case of this clause (iii), for (A) such purchases, redemptions and other acquisitions solely between the Company and a wholly owned Subsidiary thereof, or between a wholly owned Subsidiary of the Company and another wholly owned Subsidiary of the Company, (B) redemptions, repurchases or acquisitions in connection with the payment of the exercise price of Company Stock Options with Company Stock and to satisfy Tax withholding obligations in connection with the exercise of Company Stock Options or Company Warrants or the vesting or settlement of Company RSUs, Company PSUs (including Company Supplemental PSUs) and Company DSUs, that are outstanding on the date of this Agreement or subsequently granted to the extent permitted by the terms of this Agreement, in each case in accordance with the applicable terms thereof, and (C) acquisitions of shares of Class A Stock as a result of the conversion of shares of Class B Stock into shares of Class A Stock or shares of Class B Stock as a result of the conversion of shares of Class A Stock into shares of Class B Stock; (c) (i) issue, deliver, pledge, sell, or otherwise encumber to any Lien (other than a Permitted Lien) or authorize the issuance, delivery, sale, or encumbrance to any Lien (other than a Permitted Lien) of any shares of any Company Securities or Company Subsidiary Securities other than (w) the issuance of any shares of Company Stock upon the exercise of Company Stock Options or Company Warrants or the settlement of Company RSUs, Company PSUs (including Company Supplemental PSUs) and Company DSUs that are outstanding on the date of this Agreement in accordance with the applicable terms thereof on the date of this Agreement, (x) if required by an employment agreement with an Employee that is then in effect, and provided or made available to Parent prior to the date hereof or approved by Parent under this Section 5.1, (y) issuances of securities of the Company’s Subsidiaries to the Company or to wholly owned Subsidiaries of the Company and (z) issuances pursuant to the conversion of shares of Class A Stock into shares of Class B Stock or shares of Class B Stock into shares of Class A Stock or (ii) amend any term of any Company Security (in each case, whether by merger, consolidation or otherwise); provided, in each case, that the Company shall not make any grants, awards or issuances to the extent that such grants, awards or issuances would cause the Company or any of its Subsidiaries to be in violation of the Communications Act or the FCC Rules; (d) make or commit to any capital expenditures in excess of $500,000 individually or $2.5 million in the aggregate, except pursuant to the Company’s 2017 planned capital expenditures budget of $86 million; (e) make any acquisition (whether by merger, consolidation or acquisition of stock or assets) of any interest in any Person or any division or assets thereof with a value or purchase price (including all potentially payable “earn-out” consideration or any other obligation to potentially pay consideration in the future) in excess of $2.5 million in the aggregate, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement that were publicly announced prior to the date of this Agreement or otherwise made available to Parent prior to the date hereof and (ii) purchases of assets in the ordinary course of business (for the avoidance of doubt, “ordinary course of business” shall include acquisitions of programing and broadcast rights but shall not include acquisitions of broadcast television stations); (f) sell, assign, license, lease, transfer, abandon or otherwise dispose of, or create any Lien on (other than any Permitted Lien), or otherwise dispose of , any of the Company’s or its Subsidiaries’ assets, other than (i) such sales, assignments, licenses, leases, transfers, Liens or other dispositions that are in the ordinary course of business and are not material to the business of the Company and its Subsidiaries, (ii) as listed on Section 5.1(f) of the Company Disclosure Letter or (iii) to comply with, and in accordance with, Section 7.1; (g) incur any indebtedness for borrowed money or guarantees thereof, other than intercompany indebtedness and borrowings in the ordinary course of business consistent with past practice under the Company’s existing revolving credit facility; (h) make any loans, advances or capital contributions to, or investments in, any Person, other than the Company or its wholly owned Subsidiaries and ordinary course advancements and reimbursements to Employees; (i) other than in the ordinary course of business consistent with past practices (including renewals consistent with the terms thereof), (w) amend or modify in any material respect or terminate (excluding terminations or renewals upon expiration of the term thereof in accordance with the terms thereof) any Company Material Contract, (x) enter into any Contract that would constitute a Company Material Contract if in effect on the date hereof, (y) waive, release or assign any material rights, claims or benefits, or grant any material consent, under any Company Material Contract, and (z) consent to the termination of the Company’s (or of the applicable Subsidiary’s) rights thereunder, except for the termination of any Company Material Contract pursuant to the terms thereof; provided, that, in no event shall the Company take any action covered by this subsection (including in the ordinary course of business consistent with past practices, and including renewals consistent with the terms thereof) (i) with respect to any Company Material Contract (A) relating to cable or satellite transmission or retransmission with MVPDs, (B) that is or would be a network affiliation agreement, (C) that relates to the receiving or obtaining of Programming Rights by the Company or any of its Subsidiaries, or (D) that is or would be a Company Sharing Agreement.;) (j) except as required by applicable Law or except as required by the existing terms of any Company Plan or a Collective Bargaining Agreement in effect on the date hereof: (i) grant or increase any change-in-control, severance, retention, or termination pay to any employee, officer, director, or independent contractor of the Company or any of its Subsidiaries, or enter into or amend any employment, change-in-control, severance, retention or termination agreement with any such individual, (ii) establish, adopt, amend or terminate any Company Plan (including any plan, agreement or arrangement that would be a Company Plan if in effect on the date hereof), including establishing, adopting or amending any incentive or bonus plan or program relating to performance periods beginning on or after the date hereof, (iii) establish, adopt, amend or terminate any collective bargaining agreement, (iv) take any action to accelerate the vesting or payment, or fund or secure the payment, of compensation (including any equity-based compensation) or benefits under a Company Plan, (v) loan or advance any money or any other property to any current or former director, officer, employee, or independent contractor of the Company or any Subsidiary if not permitted by Section 5.1(h), (vi) grant any increase in compensation, bonus or other payments or benefits payable to any officer, director, employee or independent consultant of the Company or any of its Subsidiaries, except for (A) increases in base salaries or wages of less than 3.5% of base salary or wages on an individual basis that are made in the ordinary course consistent with past practice to any current employee, officer or director with an annual base salary of less than $200,000 or (B) increases in compensation, bonus or other payments or benefits in connection with a promotion or increase in responsibilities consistent with past practices or (vii) hire (or terminate other than for cause) any employees with an aggregate annual base compensation above $200,000; (k) materially change the Company’s methods, principles or practices of financial accounting or annual accounting period, except as required by GAAP, Regulation S-X of the Exchange Act (or any interpretation thereof), or by any Governmental Authority or applicable Law; (l) (i) materially change any method of Tax accounting, (ii) make or change any material election with respect to Taxes, (iii) amend any federal income Tax Return in a manner that would materially increase the Taxes of the Company and its Subsidiaries, (iv) settle, or offer, propose or agree to settle, any claim or deficiency in respect of Taxes in excess of $1,000,000, excluding for these purposes any agreement or settlement relating to a Tax item to the extent that such agreement or settlement does not exceed the reserves for such Tax item as reflected on the Company Balance Sheet, (v) enter into any closing agreement within the meaning of Section 7121 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to a material amount of Taxes, (vi) surrender any right to a material refund of Taxes, (vii) consent to any extension or waiver of the limitation period applicable to any audit, assessment or claim for a material amount of income Taxes except in the ordinary course of business consistent with past practice or (viii) fail to timely pay any material Tax or file any material Tax Return when due; (m) adopt or publicly propose a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, in each case, of the Company or any material Subsidiary of the Company; (n) modify or accede to the modification of any of the Company Station Licenses if doing so is reasonably likely to be materially adverse to the interests of Parent and its Subsidiaries after giving effect to the Merger in the operation of television broadcast stations or fail to provide Parent with a copy of (and a reasonable opportunity to review and comment on) any application for the modification of any of the Company Station Licenses reasonably in advance of filing with the FCC, except, in each case, as required by Law or as required in connection with the broadcast incentive auction, reassignment and repack conducted by the FCC pursuant to Section 4603 of the Middle Class Tax Relief and Job Creation Act (Pub. L. No. 112- 96, §6403, 000 Xxxx. 000, 225-230 (2012)) (the “Incentive Auction & Repack”); (o) apply to the FCC for any construction permit that would restrict in any material respect the Company Stations’ operations or make any material change in the assets of the Company Stations that is not in the ordinary course of business, except as may be necessary or advisable to maintain or continue effective transmission of the Company Stations’ signals within their respective service areas as of the date hereof, except, in each case as required by Law or as required in connection with the Incentive Auction & Repack; (p) settle, offer or propose to settle any Proceeding involving or against the Company, any Company Sharing Company or any of their respective Subsidiaries in excess of $2 million (excluding, for the avoidance of doubt, amounts paid by insurance and other amounts not paid out-of-pocket by the Company) or otherwise discharge, settle or satisfy any Proceeding which discharge, settlement or satisfaction would reasonably be expected to materially limit or restrict the operation of the business of the Company, any Company Sharing Company or any of their respective Subsidiaries (and after the Closing, Parent or any of its Subsidiaries); (q) fail to timely make any retransmission consent election with any MVPDs that reported more than 50,000 paid subscribers to the Company or any of its Subsidiaries for March 2017 located in or serving the Company Stations’ Markets; or (r) agree, resolve or commit to do any of the foregoing. Parent and Merger Sub acknowledge and agree that: (i) nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s operations prior to the Closing, (ii) prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary set forth in this Agreement, no consent of Parent or Merger Sub shall be required with respect to any matter set forth in this Section 5.1 or elsewhere in this Agreement to the extent that the requirement of such consent would violate any applicable Law.

Appears in 1 contract

Samples: Merger Agreement (Sinclair Broadcast Group Inc)

Appears in 1 contract

Samples: Merger Agreement (Del Taco Restaurants, Inc.)

Conduct of the Company. From the date of this Agreement until the ~~Closing or~~ earlier of the ~~earlier~~ Effective Time and the termination of this ~~Agreement in accordance with Article 8 (the “Pre-Closing Period”)~~Agreement, except (x) as prohibited or required by Applicable Law, (iy) ~~expressly~~ as set forth in Section 6.01 of the Company Disclosure Schedule, or (z) as otherwise required or expressly contemplated by this Agreement, unless Parent shall otherwise consent (~~ii) set forth in Section 5.01 of the Company Letter, (iii) required by applicable Law or (iv) consented to in advance in writing by Parent or Buyer (such~~ which consent shall not to be unreasonably withheld, conditioned or delayed), . the Company shall, . and shall cause each of its Subsidiaries to~~, (A)~~ . conduct its business ~~in all material respects~~ in the ordinary course of business consistent with past ~~practice, (B)~~ practice and use its commercially reasonable ~~best~~ efforts to preserve intact ~~in all material respects~~ its business organization and ~~material business~~ relationships with customers, members. suppliers, ~~vendors~~Providers, ~~Governmental Authorities~~licensors, ~~Customers~~ licensees and other ~~Persons with which the Company has material business relationships~~ Third Parties and keep available the services of its present officers and ~~key employees and~~ employees; provided that (Ci) ~~use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of~~ no action by the Company or any of its Subsidiaries ~~shall~~ permitted by an exception to any of Section 6.0l(a) through Section 6.0l(g) will be ~~required~~ a breach of this sentence and (ii) the Company's or any of its Subsidiaries' failure to take any action prohibited by any of Section 6.01 (~~or shall without Parent’s or Buyer’s prior consent,~~ a) through Section 6.0ICgl will not to be ~~unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course~~ a breach of ~~business in order to maintain such business relationships~~this sentence. ~~In addition to and without~~ Without limiting the generality of the foregoing, ~~during~~ except (x) as prohibited or required by Applicable Law, (y) as set forth in Section 6.01 of the ~~Pre-Closing Period~~Company Disclosure Schedule, ~~except~~ or (z) as ~~(w) expressly~~ otherwise required or expressly contemplated by this Agreement, . without Parent's prior written consent (~~x) set forth in Section 5.01 of the Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such~~ which consent shall not to be unreasonably withheld, . conditioned or ~~delayed~~delayed (other than with respect to Section 6.0l(a). Section 6.0l(c) or Section 6.0l(dl), the Company shall not, and shall cause each of its Subsidiaries not to: (a) adopt or propose any change to its articles of incorporation, bylaws or other organizational documents (whether by merger, consolidation or otherwise) (including the Company Organizational Documents); (b) (i) merge or consolidate with any other Person, (ii) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership. other business organization or any division thereof or any assets, securities or property, other than (A) acquisitions of assets, securities or property in an amount not to exceed $100,000,000 individually or $200,000,000 in the aggregate for all such acquisitions taking into account the acquisitions listed on Section 6.01 (b) of the Company Disclosure Schedule, together with all capital contributions permitted by Section 6.0](h)(ilCBl, (B) acquisitions of securities under the Company's investment portfolio consistent with the Company's investment policy in effect as of the date hereof and (C) transactions (I) solely among the Company and one or more of its wholly owned Subsidiaries or (2) solely among the Company's wholly owned Subsidiaries, or (iii) adopt a plan of complete or partial liquidation, dissolution. recapitalization or restructuring;

Appears in 1 contract

Samples: Merger Agreement

Conduct of the Company. ~~From~~ During the period from the date of this Agreement and continuing until the ~~Closing or~~ Closing, the ~~earlier termination of this Agreement in accordance with Article 8 (the “Pre-Closing Period”)~~Seller agrees that, except as ~~(i) expressly required or~~ expressly contemplated or permitted by this ~~Agreement, (ii) set forth in Section 5.01 of~~ Agreement or the ~~Company Letter, (iii)~~ Schedules; as required by ~~applicable Law~~ any Legal Requirement; or ~~(iv) consented~~ to the extent that the Buyer shall otherwise consent in ~~advance in writing by Parent or Buyer (such~~ writing, which consent shall not to be unreasonably withheld, conditioned or delayed), : (a) the ~~Company shall, and~~ Seller shall ~~cause each of its Subsidiaries to, (A) conduct~~ use reasonable efforts to carry on its business in the usual, regular and ordinary course in all material ~~respects~~ respects, in substantially the same manner as heretofore conducted; provided, however, that no action by the Seller with respect to matters specifically addressed by any other provision of this Section 6.14 shall be deemed a breach of this Section 6.14, unless such action would constitute a breach of one or more of such other provisions; (b) other than as may be required by or in conformance with Legal Requirements in order to permit or facilitate the consummation of the transactions contemplated hereby or the transactions disclosed in the Schedules, the Seller shall not sell, encumber or otherwise dispose of, or agree to sell, encumber or otherwise dispose of, any of its material assets other than in the ordinary course of business consistent with past practice; (c) other than as required by an existing contract or agreement as in effect on the date hereof and other than in the ordinary course of business consistent with past practice, (B) use its reasonable best efforts to preserve intact in all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company ~~has material business relationships and keep available~~ shall not (i) increase the ~~services~~ amount of ~~its present officers and key employees and~~ cash compensation or severance pay of any officer, (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of the Company or any of its Subsidiaries shall be required to (or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayedii) make any ~~payments~~ material increase in, or commitment to ~~its business relationship counterparties~~increase materially, beyond that paid in the ordinary course of business in order to maintain such business relationships. In addition to and without limiting the generality of the foregoing, during the Pre-Closing Period, except as (w) expressly required or expressly contemplated by this Agreement, (x) set forth in Section 5.01 of the Company Letter, (y) required by applicable Law any employee benefits or (ziii) ~~consented~~ adopt or make any commitment to ~~in advance in writing by Parent~~ adopt any material new Employee Benefit Plan or ~~Buyer (such consent not~~ make any material contribution, other than regularly scheduled contributions, to ~~be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries not to:~~any Employee Benefit Plan.

Appears in 1 contract

Samples: Asset Purchase Agreement (Medcath Corp)

Conduct of the Company. ~~From~~ During the period from the date of this Agreement and continuing until the ~~Closing or~~ Closing, the ~~earlier termination of this Agreement in accordance with Article 8 (the “Pre-Closing Period”)~~Seller agrees that, except as ~~(i) expressly required or~~ expressly contemplated or permitted by this ~~Agreement, (ii) set forth in Section 5.01 of~~ Agreement or the ~~Company Letter, (iii)~~ Schedules; as required by ~~applicable Law~~ any Legal Requirement; or ~~(iv) consented~~ to the extent that the Buyer shall otherwise consent in ~~advance in writing by Parent or Buyer (such~~ writing, which consent shall not to be unreasonably withheld, conditioned or delayed), : (a) the ~~Company shall, and~~ Seller shall ~~cause each of its Subsidiaries to, (A) conduct~~ use reasonable efforts to carry on its business in the usual, regular and ordinary course in all material ~~respects~~ respects, in substantially the same manner as heretofore conducted; provided, however, that no action by the Seller with respect to matters specifically addressed by any other provision of this Section 6.14 shall be deemed a breach of this Section 6.14, unless such action would constitute a breach of one or more of such other provisions; (b) other than as may be required by or in conformance with Legal Requirements in order to permit or facilitate the consummation of the transactions contemplated hereby or the transactions disclosed in the Schedules, the Seller shall not sell, encumber or otherwise dispose of, or agree to sell, encumber or otherwise dispose of, any of its material assets other than in the ordinary course of business consistent with past practice; (c) other than as required by an existing contract or agreement as in effect on the date hereof and other than in the ordinary course of business consistent with past practice, (B) use its reasonable best efforts to preserve intact in all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none of the Company or any of its Subsidiaries shall be required to (or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationships. In addition to and without limiting the generality of the foregoing, during the Pre-Closing Period, except as (w) expressly required or expressly contemplated by this Agreement, (x) set forth in Section 5.01 of the Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall ~~not, and shall cause its Subsidiaries~~ not ~~to:~~(i) increase the amount of cash compensation or severance pay of any officer,

Appears in 1 contract

Samples: Asset Purchase Agreement

Conduct of the Company. ~~From the date of this Agreement until the Closing or the earlier termination of this Agreement in accordance with Article 8 (the “Pre-Closing Period”), except as~~ Except (i) ~~expressly required or expressly contemplated by this Agreement, (ii) set forth in Section 5.01~~ with the prior written consent of ~~the Company Letter, (iii) required by applicable Law or (iv) consented to in advance in writing by~~ Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed~~conditioned; provided that such consent will be deemed to have been given by Parent if (A) Parent's response to the Company's written request for such consent is not provided within three calendar days of the Company's written request (it being acknowledged and agreed that, for purposes of this Section 6.01, an email sent to each of the Persons set forth on Section 6.01 of the Parent Disclosure Letter or their designees shall be considered a written request) and (B) the Company provides information reasonably requested by Parent with respect to matter for which consent is requested), (ii) as expressly contemplated by this Agreement, (iii) as set forth in Section 6.01 of the Company Disclosure Letter, or (iv) as required by Applicable Law, from the date of this Agreement until the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (Ax) conduct its business in the ordinary course consistent with past practice, (y) conduct its business in material compliance with all ~~material respects~~ Applicable Laws and (z) to the extent consistent with clauses (x) and (y) of this sentence, use its commercially reasonable efforts to preserve intact its current business organizations and to preserve its relationships with Third Parties (including customers, suppliers, lenders and others having business dealings with the Company or any of its Subsidiaries) (provided, that neither the Company nor any of its Subsidiaries shall be obligated to make any payments or grant any concessions to such Third Parties other than payments in the ordinary course consistent with past practice) and keep available the services of its directors, officers and key employees (provided that neither the Company nor any of its Subsidiaries shall be obligated to increase the compensation of, or make any other payments or grant any concessions to, such directors, officers and employees). Without limiting the generality of the foregoing, except (i) with the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned, except in the case of Sections 6.01(a), 6.01(b), 6.01(c), 6.01(d), 6.01(e), 6.01(f), 6.01(g), 6.01(i), 6.01(k), 6.01(m), 6.01(p), 6.01(r) or 6.01(t), and provided that such consent will be deemed to have been given by Parent if (A) Parent's response to the Company's written request for such consent is not provided within three calendar days of the Company's written request (it being acknowledged and agreed that, for purposes of this Section 6.01, an email sent to each of the Persons set forth on Section 6.01 of the Parent Disclosure Letter or their designees shall be considered a written request) and (B) the Company provides information reasonably requested by Parent with respect to matter for which consent is requested), (ii) as expressly contemplated by this Agreement, (iii) as set forth in Section 6.01 of the Company Disclosure Letter, or (iv) as required by Applicable Law, the Company shall not, nor shall it permit any of its Subsidiaries to: (a) amend its memorandum and articles of association or other similar organizational documents (whether by merger, consolidation or otherwise); (b) (i) split, combine or reclassify any shares, (ii) declare, set aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of its share capital or set any record date therefor, except for dividends by any of its wholly owned Subsidiaries, or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities; (c) (i) grant, issue, deliver, transfer or sell any Company Securities or Company Subsidiary Securities or (ii) amend any term of any Company Security or any Company Subsidiary Security; (d) (i) acquire (by merger, consolidation, acquisition of shares or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses from any other Person, or make any loans, advances, or capital contributions to or investments in any Person, having a value in excess of $1,000,000 in the aggregate, from any other Person, other than in connection with a capital expenditure permitted pursuant to Section 6.01(l), (ii) merge or consolidate with any other Person or (iii) adopt a plan of complete or partial liquidation, dissolution, recapitalization, restructuring or other similar action; (e) sell, lease, license, abandon, dispose of or otherwise transfer any Subsidiary or any amount of assets, securities, properties, interests or businesses (i) to a Related Party or (ii) for consideration either (A) below market value or (B) in excess of $1,000,000 in the aggregate, other than sales or other dispositions of inventory in the ordinary course of business consistent with past practice to any Person other than a Related Party; (f) create, assume, incur or otherwise be liable with respect to any indebtedness for borrowed money (or amend and restate or refinance any existing indebtedness for borrowed money) or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, or any guarantee of the foregoing or enter into any "keep well" or other agreement to maintain any financial statement condition of another Person, in each case other than (i) incurred or assumed in the ordinary course of business consistent with past practice (including any borrowings under the Company's existing credit facilities and in respect of letters of credit) and in no event in excess of $1,000,000 in the aggregate, (ii) indebtedness incurred between or among the Company or any of its wholly owned Subsidiaries made in the ordinary course of business consistent with past practice, or (Biii) ~~use its reasonable best efforts to preserve intact in all material respects its business organization~~ accrual of interest, drawdowns, premiums, penalties, fees, expenses and ~~material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the~~ breakage costs under any Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 Material Contract existing as of the ~~Company Letter; provided~~date hereof; (g) prepay, ~~that none~~ redeem, repurchase, defease, cancel or otherwise terminate (or amend, restate or refinance any existing indebtedness for borrowed money) any indebtedness for borrowed money or any debt securities or warrants of the Company or any of its Subsidiaries ~~shall be required~~ (other than scheduled payments of the Company's existing indebtedness when due); (h) (i) grant or increase any severance or termination pay to (or ~~shall without Parent’s~~ amend any existing severance pay or ~~Buyer’s prior consent~~termination arrangement with) any Company Employee or director of the Company or any Subsidiary, (ii) increase benefits payable under any severance or termination pay policies or employment agreements existing as of the date of this Agreement, (iii) enter into any employment, deferred compensation, retention or other similar agreement (or any amendment to any such existing agreement) with any Company Employee or directors of the Company or any Subsidiary, (iv) establish, adopt or amend any Labor Contract or Company Employee Plan, or (v) increase compensation, bonus or other benefits payable to any Company Employee or director of the Company or any Subsidiary, except for retention bonuses not to ~~be unreasonably withheld~~exceed $6,000,000 in the aggregate that are payable to employees of the Company and its Subsidiaries (but not to employees of the Manager); (i) pay any success fee or bonus in connection with the Transactions other than to the Persons set forth on Section 6.01(i) of the Company Disclosure Letter in accordance with the fee arrangements disclosed to Parent prior to the date of this Agreement; (j) change the Company's methods of accounting or accounting principles or practices, ~~conditioned~~ except as required by GAAP or ~~delayed~~in Regulation S-X of the Exchange Act and approved by its independent public accountants; (k) make, change or revoke any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Returns or claims for Tax refunds, enter into any closing agreement, settle or compromise any Tax claim (except for Taxes that become due and payable in the ordinary course of business), audit or assessment, surrender any right to claim a Tax refund, offset or other reduction in Tax liability, or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment; (l) make any ~~payments~~ capital expenditure, or incur any obligation or liability in respect thereof, in excess of $5,000,000 in the aggregate, in excess of amounts budgeted for by the Company or its Subsidiaries as described in Section 6.01(l) of the Company Disclosure Letter other than capital expenditures relating to ~~its business relationship counterparties, beyond that paid~~ the maintenance of the Company Fleet Assets in the ordinary course of business consistent with past practice or capital expenditures in ~~order~~ connection with any drilling contract the entry into which is permitted under this Section 6.01, so long as, in the case of this Section 6.01(l), no such capital expenditure is made to ~~maintain such business relationships. In addition to and without limiting the generality of the foregoing, during the Pre-Closing Period~~a Related Party; (m) create or incur any Lien (except for a Permitted Lien) on any material asset, except as otherwise permitted under this Section 6.01; (wn) ~~expressly required~~ enter into (or, following entry, terminate, amend, modify or ~~expressly contemplated by~~ waive rights or claims under) any contract that would have been a Company Material Contract were the Company a party or subject thereto on the date of this ~~Agreement~~Agreement other than (i) the entry into any contract that would have been a Company Material Contract pursuant to Section 4.18(a)(xvi) so long as the day rates and the terms generally are on terms consistent with market practice in the offshore drilling industry at the time of such entry or (ii) renewals of existing Company Material Contracts in the ordinary course of business consistent with past practice; (o) terminate or amend any Company Material Contract or Real Property Lease, ~~(x) set forth in Section 5.01~~ or waive, release or assign any material right, claims or benefit of the Company ~~Letter~~thereunder; (p) terminate, renew, suspend, abrogate, amend or modify in any material respect any Company Permit other than in the ordinary course of business consistent with past practice; (q) settle, or offer or propose to settle, any Proceeding or other claim involving or against the Company or any Subsidiary, other than (i) the settlement of Proceedings (other than Proceedings involving any counterclaim) that require payments by the Company or any of its Subsidiaries in an amount not to exceed $2,500,000 in the aggregate, or (ii) the settlement of Proceedings (other than Proceedings involving any counterclaim) disclosed, reflected or reserved against in the most recent financial statements (or notes thereto) of the Company included in the Company SEC Documents for an amount not in excess of the amount so disclosed, reflected or reserved; provided, however, that the foregoing clauses (i) and (ii) shall not permit the Company or any of its Subsidiaries to settle any Proceeding (A) that would involve injunctive or equitable relief, impose any restrictions or changes on the business or operations of the Company or any of its Subsidiaries, involve any admission of any wrongdoing by the Company or any of its Subsidiaries, or involve any license, cross license or similar arrangement with respect to material Intellectual Property owned by the Company or any of its Subsidiaries, (yB) ~~required by applicable Law~~ for which such settlement is not permitted pursuant to Section 8.08 or (zC) ~~consented~~ that is listed on Section 6.01(q) of the Company Disclosure Letter (the "Specified Litigation"); provided, further, that for the avoidance of doubt, to ~~in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed~~the extent of any conflict between Section 6.01(k) and this Section 6.01(q), Section 6.01(k) shall control; (r) fail to use commercially reasonable efforts to maintain existing material insurance policies or comparable replacement policies; (s) authorize any of, or commit or agree to take any of, the ~~Company shall not~~foregoing actions in the preceding Sections 6.01(h), ~~and shall cause its Subsidiaries not to:~~6.01(j), 6.01(l), 6.01(n), 6.01(o) or 6.01(q); or (t) authorize any of, or commit or agree to take any of, the foregoing actions in the preceding Sections 6.01(a), 6.01(b), 6.01(c), 6.01(d), 6.01(e), 6.01(f), 6.01(g), 6.01(i), 6.01(k), 6.01(m), 6.01(p) or 6.01(r).

Appears in 1 contract

Samples: Merger Agreement (Ocean Rig UDW Inc.)

Conduct of the Company. From the date ~~of this Agreement~~ hereof until the ~~Closing~~ earlier of the Effective Time or the ~~earlier~~ termination of this Agreement ~~in accordance with~~ pursuant to Article ~~8 (the “Pre-Closing Period”)~~10, except as ~~(i) expressly required or~~ expressly contemplated by this Agreement, ~~(ii)~~ as set forth in Section ~~5.01~~ 6.01 of the ~~Company Letter~~Disclosure Schedule, ~~(iii)~~ as expressly required by applicable Law (including COVID-19 Measures), or ~~(iv) consented to in advance in writing by~~ with the prior written consent of Parent ~~or Buyer~~ (such consent not to be unreasonably withheld, ~~conditioned~~ delayed or ~~delayed~~conditioned), the Company shall, and shall cause its Subsidiaries to: (i) conduct their business in the ordinary course of business consistent with past practice and (ii) use commercially reasonable efforts to (A) preserve intact their assets, technology and goodwill, as well as their business organizations and relationships with third parties (including all customers, suppliers and others having material business dealings with the Company or any Subsidiary of the Company), (B) keep available the services of their present officers and employees and (C) maintain the Owned Real Property and, to the extent required by the Leases, the Leased Real Property in good condition and repair. Without limiting the generality of the foregoing, from the date hereof until the earlier of the Effective Time or the termination of this Agreement pursuant to Article 10, except as otherwise expressly contemplated by this Agreement, as set forth in Section 6.01 of the Disclosure Schedule, as expressly required by applicable Law (including COVID-19 Measures), or with the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned), the Company shall not, and shall cause each of its Subsidiaries not to, whether directly or indirectly, do, or agree to do, any of the following: (a) (i) make, declare, set aside or pay any dividend or other distribution (whether payable in cash, stock, property or any combination thereof) with respect to any shares of capital stock or other securities of, or ownership interest in, the Company or any of its Subsidiaries other than dividends and other distributions paid by any Subsidiary to the Company or any other wholly-owned Subsidiary of the Company or (ii) amend any existing Contract, or enter into any new Contract, relating to the voting or registration of its capital stock other than the extension of the Voting Agreements; (b) (i) adjust, split, combine or reclassify any shares of capital stock or other securities of, or ownership interests in, the Company or any of its Subsidiaries or (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries; (c) directly or indirectly repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries, other than (i) from holders of Stock Options in full or partial payment of the exercise price or (ii) from holders of Stock Options, Restricted Stock Units or Performance Share Units in full or partial payment of any applicable Taxes payable by such holder upon exercise or vesting thereof, as applicable; (d) issue, deliver, sell, pledge, dispose of, grant, transfer or otherwise subject to any Lien, or authorize the issuance, delivery, sale, pledge, disposition, grant, transfer or subjection to any Lien of (i) any shares (of any class or series) of its capital stock or other securities of, or ownership interests in, the Company or any of its Subsidiaries or (ii) any Stock Options, Restricted Stock Units, Performance Share Units or other securities convertible into or exercisable or exchangeable for shares of any class or series of capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries, other than (A) ~~conduct~~ the exercise of Stock Options outstanding on the date of this Agreement, (B) the settlement of Restricted Stock Units or Performance Share Units, in each case outstanding on the date of this Agreement, or (C) Shares issued pursuant to the Company Stock Purchase Plan for the purchase period ending December 31, 2020 (or June 30, 2021 if the Closing does not occur prior to or on December 31, 2020), or discretionarily accelerate the vesting of any such awards; (e) except as otherwise contemplated by this Agreement (i) adopt or implement (A) any amendment to its articles of incorporation or bylaws or other comparable organizational documents or (B) any plan of consolidation, merger or reorganization or (ii) amend the terms of its outstanding securities; (f) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or the assets of, or by any other manner, any Person or division thereof; (g) transfer, sell, lease, license, mortgage, otherwise encumber or voluntarily subject to any Lien or otherwise dispose of any of its properties or assets (including the Owned Real Property), except sales of non-real property assets in the ordinary course of business or Liens incurred to secure borrowings to finance the payment of the Company Termination Fee as permitted by subsection (j) below; (h) except for the items currently contracted for by the Company and the items contemplated by the Company’s capital expenditure budget, make or agree to make any new capital expenditure in ~~all~~ excess of $50,000 individually or $150,000 in the aggregate; (i) except for the incurrence of indebtedness for borrowed money under the Company’s existing credit facilities that would result in an aggregate amount outstanding under those existing credit facilities of less than $3,200,000 (or any replacement credit facilities for principal amounts not exceeding those permitted by the existing credit facilities), (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person (other than among the Company and its direct or indirect wholly owned Subsidiaries), (ii) issue or sell any debt securities or warrants or other rights to acquire any debt securities, or guarantee any debt securities of another Person (other than among the Company and its direct or indirect wholly owned Subsidiaries), except for the execution of leases to finance capital expenditures permitted by Section 6.01(h) or except in the event of a termination of this Agreement to enter into a Superior Proposal in accordance with Section 6.03, for financing the payment of the Company Termination Fee through borrowings from the Person whose Acquisition Proposal resulted in the termination of this Agreement pursuant to Article 10; (i) take any action that would result in any amendment, modification or change of any term of any indebtedness of the Company or any of its Subsidiaries or (ii) repurchase, prepay or amend or modify the terms of any indebtedness of the Company or any of its Subsidiaries; (k) make any loans, advances or capital contributions to, or investments in, any other Person, other than (i) among the Company and its direct or indirect wholly owned Subsidiaries or (ii) the extension of credit in the ordinary course of business consistent with past practice; (l) except as otherwise contemplated by this Agreement, terminate, enter into or adopt any new, or amend or renew any existing, Benefit Plans, or any Collective Agreement, other than as required by any Benefit Plan in effect as of the date hereof or by Law; (m) except to the extent required by the terms of written employment agreements as in effect on the date of this Agreement, increase in any manner the compensation (including base salary or wage rate and incentive compensation), severance, termination pay, pension or other fringe benefits or perquisites provided to any of its current or former directors, employees, or Contract Workers, other than annual merit increases set forth in the Company’s fiscal year 2021 operating budget (a copy of which has been provided to Parent), and 401(k) plan matching contributions consistent with past practice; (n) (A) enter into any new Contracts of employment or any severance, retention, change in control or similar agreement providing for annual base compensation or consulting compensation in excess of $150,000, or amend any such Contracts, (B) hire an employee or Contract Worker with annual base compensation of $150,000 or more or (C) terminate (other than for cause) any member or the Company’s senior leadership team; (o) pay, agree to pay or award any employee bonuses other than those payments based on actual performance for completed performance periods paid in accordance with the terms and conditions and in the amounts of bonus arrangements disclosed in writing to Parent prior to the date of this Agreement, including the Fiscal 2021 Short-Term Incentive Plan, other than spot bonuses in the amounts not to exceed $2,000 to any individual and $20,000 in the aggregate and that are awarded consistent with past practice and paid for by the Company in full prior to the Closing Date; (p) adopt any change, other than as required by the SEC, changes in GAAP or applicable Law, in its accounting policies, procedures or practice (or change any annual accounting periods); (q) other than in the ordinary course of business, settle or compromise any material ~~respects~~ income Tax liability requiring a payment in excess of $100,000 individually or in the aggregate; (r) except in the ordinary course of business consistent with past practice, make or change any material Tax election; (Bs) ~~use its reasonable best efforts~~ (i) encumber, impair, abandon, fail to ~~preserve intact in all material respects its business organization and material business relationships with suppliers~~diligently maintain, ~~vendors~~transfer or otherwise dispose of any right, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services of its present officers and key employees and (C) use commercially reasonable efforts to undertake the actions enumerated in Section 5.01-1 of the Company Letter; provided, that none title or interest of the Company or any of its Subsidiaries ~~shall be required~~ in or to any Company Owned Intellectual Property (~~or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid~~ other than non-exclusive licenses granted in the ordinary course of business ~~in order to maintain such business relationships. In addition to and without limiting the generality~~ consistent with past practice), or (ii) disclose or make accessible any Secret Information of the ~~foregoing~~Company or its Subsidiaries to any Person not subject to a valid and enforceable written nondisclosure agreement to protect the confidentiality thereof; (t) pay, ~~during~~ discharge, settle or satisfy any disputed Proceeding, disputed liability or other controversy (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the ~~Pre-Closing Period~~discharge or satisfaction in the ordinary course of business consistent with past practice; provided, however, that, except as ~~(w) expressly required or expressly contemplated by this Agreement, (x)~~ set forth in Section ~~5.01~~ 8.05, the discharge or settlement of any disputed Proceeding, disputed liability or other controversy in the amount of less than $100,000 shall in no event be prohibited by the foregoing; (u) terminate (other than by expiration in accordance with its terms), cancel, materially amend or agree to any material change in or material waiver under any Material Contract, or enter into any Contract that would constitute a Material Contract if in effect as of the date hereof, except in each case in the ordinary course of business consistent with past practice; (v) cancel, terminate or allow to lapse any material insurance policy naming the Company or any Subsidiary as a beneficiary; (w) enter into any agreement or arrangement that limits or otherwise restricts the Company or any of its Subsidiaries or any successor thereto or that could, after the Effective Time, limit or restrict the Company, any of its Subsidiaries, Parent or its Affiliates, or any successor thereto, from engaging or competing in any line of business or in any geographic area; (x) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company ~~Letter,~~ or any of its Subsidiaries (other than the Merger or an otherwise permitted by this Agreement); (y) except as otherwise contemplated by Sections 4.17 and 6.06, redeem the Rights or amend or terminate the Rights Agreement, except in connection with any action permitted by Section 6.03(e) or 6.03(f) or as required by ~~applicable Law~~ any statute, rule, regulation, injunction, Order or decree of any Governmental Entity; or (z) ~~consented~~ enter into, or agree or commit to enter into, any agreement, Contract, commitment or arrangement that if completed would be in ~~advance~~ contravention of any of the foregoing clauses of this Section 6.01. Nothing contained in ~~writing by~~ this Agreement is intended to give Parent or ~~Buyer (such consent not~~ Merger Subsidiary, directly or indirectly, the right to ~~be unreasonably withheld, conditioned~~ control or ~~delayed)~~direct the operations of the Company prior to the Effective Time. Prior to the Effective Time, the Company shall ~~not~~exercise, consistent with the terms and ~~shall cause~~ conditions of this Agreement, complete control and supervisions of its ~~Subsidiaries not to:~~and its Subsidiaries’ respective operations.

Appears in 1 contract

Samples: Merger Agreement (Perceptron Inc/Mi)

Conduct of the Company. ~~From~~ 6.1.1 During the period commencing on the date of this Agreement ~~until the Closing or~~ and ending on the earlier of the termination of this Agreement ~~in accordance with Article 8~~ and the Effective Time (the “Pre-Closing Period”), except as for matters (i) ~~expressly~~ required ~~or expressly contemplated~~ by ~~this Agreement~~Applicable Law, (ii) ~~set forth in Section 5.01~~ undertaken with the prior written consent of ~~the Company Letter~~Parent and US HoldCo, ~~(iii) required by applicable Law or (iv) consented to in advance in writing by Parent or Buyer (such consent~~ which shall not to be unreasonably withheld, conditioned or delayed), or (iii) expressly required by this Agreement, the Company shall, and shall cause each of its Subsidiaries to, ~~(A)~~ conduct ~~its business~~ in all material respects its business in the ordinary course of business, consistent with past practice, and use its reasonable best efforts to (A) maintain and preserve intact in all material respects its business organization, (B) keep available the services of Company Employees believed to be critical to the Company’s business, (C) maintain in effect all of its material Permits, and (D) maintain and preserve satisfactory relationships with material customers, suppliers and others having material business relationships with the Company. 6.1.2 Without limiting the generality of the foregoing in Section 6.1.1, during the Pre-Closing Period, the Company shall, and shall cause each of its Subsidiaries to, make such capital expenditures in accordance in all material respects with the Company’s capital expenditure plan for 2017 provided to Parent prior to the date of this Agreement and set forth in Section 6.1.2 of the Company Disclosure Schedules (the “Capital Expenditure Budget”); provided, however, that the Company may make adjustments from the Capital Expenditure Budget with the prior written consent of Parent, which shall not be unreasonably withheld, conditioned or delayed. 6.1.3 Without limiting the generality of the foregoing in Section 6.1.1, during the Pre-Closing Period, except (i) as may be required by Applicable Law, (ii) with the prior written consent of Parent and US HoldCo, which shall not be unreasonably withheld, conditioned or delayed, (iii) as may be expressly contemplated or required by this Agreement, or (iv) as set forth in Section 6.1.3 of the Company Disclosure Schedules, the Company shall not, and shall not permit any of its Subsidiaries to: (i) amend the Company Organizational Documents or the Company Subsidiary Organizational Documents (including by merger, consolidation or otherwise), or otherwise take any action to exempt any Person from any provision of the Company Organizational Documents or the Company Subsidiary Organizational Documents; (ii) exempt any Person (other than Parent and its Affiliates) from the provisions of Section 203 of the DGCL or any other “moratorium,” “control share acquisition,” “business combination,” “fair price” or other form of anti-takeover law or regulation; (iii) split, combine, subdivide, reclassify, redeem, purchase or otherwise acquire any shares of its capital stock or other equity or voting interests; (iv) amend any term of any Company Security or any security of any of its Subsidiaries (in each case, including by merger, consolidation or otherwise); (v) make, declare, accrue, set aside or pay any dividend or make any other distribution on (whether in cash, stock, property or otherwise), or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock, or any other securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (A) dividends paid by any Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company (to the extent such dividends would not result in (i) a material Tax liability to the Company or any Subsidiary of the Company or (ii) a material Tax liability that has not previously been accrued in the Company’s financial statements pursuant to APB 23 or similar guidance issued by the Financial Standards Accounting Board), (B) the acceptance of shares of Company Common Stock as payment for the exercise price of Company Stock Options or for withholding Taxes incurred in connection with the exercise of Company Stock Options or the vesting or settlement of Company Stock Awards outstanding as of the date hereof or granted after the date hereof in compliance with this Agreement, in each case in accordance with past practice and the terms of the applicable award Contracts, or (C) as contemplated in Section 6.12 in relation to the Convertible Notes and the Senior Notes); (vi) grant or amend any Company Stock Awards or other equity or equity-based awards or interests, or grant any Person any right to acquire any shares of its capital stock or other equity or voting interests; (vii) issue, sell, grant, pledge or otherwise dispose of or permit to become outstanding any additional shares of its capital stock or other equity or voting interests or securities convertible or exchangeable into, or exercisable for, any shares of its capital stock or other equity or voting interests or any options, warrants, or other rights of any kind to acquire any shares of its capital stock or other equity or voting interests, except pursuant to the exercise of Company Stock Options or the settlement of Company Stock Awards outstanding as of the date hereof or granted after the date hereof in compliance with this Agreement, in each case in accordance with their terms, or enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock or equity interests; (viii) adopt any plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, of the Company or permit any of its Subsidiaries to do so, or file a petition in bankruptcy under any provisions of Applicable Law on behalf of the Company or any of its Subsidiaries or consent to the filing of any bankruptcy petition against any the Company or permit any of its Subsidiaries to do so under any similar Applicable Law; (ix) create any Subsidiary of the Company or any of its Subsidiaries; (x) other than renewals of existing letters of credit, redeem, repurchase, prepay, defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any Indebtedness or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise) (in each case, other than the repayment or prepayment of any Indebtedness owed by any Subsidiary of the Company to the Company or any other wholly owned Subsidiary of the Company); (xi) grant or suffer to exist any Liens on any material properties or assets, tangible or intangible, of the Company or any of its Subsidiaries, other than Permitted Liens; (xii) enter into (i) any platinum or palladium hedging transactions or (ii) any other hedging transactions other than in the ordinary course of business consistent with past practice; (xiii) make any capital investment in, loan or advance to, or make or forgive any loan to, any other Person, other than the making of any loans or advances (i) by any wholly owned Subsidiary of the Company to the Company or any other wholly owned Subsidiary of the Company, (ii) to distributors or suppliers consistent in all material respects with the business plan provided to Parent prior to the date of this Agreement not in excess of $1,000,000 in the case of any individual distributor or supplier and $5,000,000 in the aggregate, or (iii) customary expenses and travel advances to employees in the ordinary course of business consistent with past practice; (xiv) other than in the ordinary course of business consistent with past practice or in accordance with any Contract in effect on the date hereof, (i) sell, transfer, lease, mortgage, encumber or otherwise dispose of, in a single transaction or series of related transactions, any of its material properties or assets to any Person other than to the Company or a wholly owned Subsidiary of the Company and other than sales of inventory or sales of obsolete or unneeded equipment in the ordinary course of business consistent with past practice or (ii) cancel, release or assign any material Indebtedness of any such Person owed to it or any claims held by it against any such Person, other than a wholly owned Subsidiary; (xv) acquire (whether by merger or consolidation, acquisition of stock or assets or by formation of a joint venture or otherwise) any other Person or business or any material assets, deposits or properties of any other Person other than in the ordinary course of business or for consideration not in excess of $1,000,000 individually or $5,000,000 in the aggregate or (ii) make any material investment in any other Person either by purchase of stock or securities or contributions to capital; (xvi) make or authorize any capital expenditures other than (i) capital expenditures expressly provided for in the Capital Expenditure Budget as set forth in Section 6.1.2 or (ii) any other capital expenditures not in excess of $5,000,000 in the aggregate in the 2017 fiscal year; (xvii) except in the ordinary course of business, (i) terminate, cancel, renew, fail to exercise an expiring renewal option, amend, grant a waiver under or otherwise modify any Company Material Contract or any lease, sublease or other Agreement in connection with any Company Leased Real Property (collectively and including all amendments thereto, a “Company Real Property Lease”) or any Contract that would constitute a Company Material Contract or a Company Real Property Lease if in effect as of the date of this Agreement (including any buyout of such Contract) or any mining claims or any renewals thereof or (ii) enter into any Contract that would constitute a Company Material Contract or a Company Real Property Lease if in effect as of the date of this Agreement; (xviii) except as required by Applicable Law or the terms of any Company Benefit Plan or Collective Bargaining Agreement as in effect on the date of this Agreement, (i) establish, adopt, amend or terminate any Collective Bargaining Agreement or Company Benefit Plan or commence an off-cycle enrollment period under any Company Benefit Plan that provides health and welfare benefits, (ii) increase in any manner the compensation (including severance, change-in-control and retention compensation) or benefits of Company Employees, (iii) pay or award, or commit to pay or award, any bonuses or incentive compensation, (iv) accelerate any rights or benefits or, except in the ordinary course of business consistent with past practice, make any material determinations or interpretations with respect to any Company Benefit Plan, (v) fund any rabbi trust or similar arrangement, or otherwise accelerate the time of funding, vesting or payment of any payments or benefits under any Company Benefit Plan, (vi) enter into, adopt or amend any employment, individual consulting, bonus, severance or retirement Contract other than offer letters with any non-officer employee (that do not require equity-based compensation) in the ordinary course of business, or (vii) hire, promote or terminate the employment or services of (other than for cause) any officer; (xix) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or Applicable Law; (xx) change in any material respect the policies or practices regarding accounts receivable or accounts payable or fail to manage working capital in accordance with past practices; (xxi) except with respect to Taxes (which shall be governed by Section 6.1.3(xxii)), commence, settle, pay, discharge, satisfy or compromise any Proceeding, except for (i) settlements or compromises that (A) involve monetary remedies with a value not in excess of $1,000,000, with respect to any individual Proceeding, or $5,000,000, in the aggregate, (B) ~~use its reasonable best efforts to preserve intact in all~~ do not impose any material ~~respects~~ restriction on its business ~~organization and material~~ activities or the business ~~relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services~~ activities of its ~~present officers and key employees~~ Subsidiaries, and (C) ~~use commercially reasonable efforts~~ do not relate to ~~undertake~~ any Company Stockholder Litigation (the ~~actions enumerated~~ settlement or compromise of which shall be governed exclusively by Section 6.12), and (ii) the commencement of any Proceeding that is in the ordinary course of business; (xxii) make, change or revoke any material Tax election or change any material Tax accounting method, file any material amended Tax Return or claim for a material Tax refund, enter into any closing agreement within the meaning of Section ~~5.01-1~~ 7212 of the ~~Company Letter; provided~~Code (or any comparable provision of state, ~~that none~~ local or non-U.S. Applicable Law) with respect to a material amount of Taxes in excess of any amount reserved therefor in accordance with GAAP, request any material Tax ruling, settle or compromise any material Tax proceeding in excess of any amount reserved therefor in accordance with GAAP, or surrender any claim for a material refund of Taxes; (xxiii) abandon or discontinue any existing line of business; (xxiv) enter into any new line of business outside its existing business as of the ~~Company or any~~ date of ~~its Subsidiaries shall be required to~~ this Agreement; (~~or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed~~xxv) ~~make any payments to its business relationship counterparties, beyond that paid~~ other than in the ordinary course of business consistent in ~~order~~ all material respects with past practice, materially reduce the amount of insurance coverage or fail to ~~maintain such business relationships. In addition~~ renew any material existing insurance policies; (xxvi) amend in a manner that adversely impacts in any material respect the ability to ~~and without limiting the generality~~ conduct its business, terminate or allow to lapse any material Permits of the ~~foregoing, during the Pre-Closing Period, except as~~ Company; (wxxvii) ~~expressly required~~ enter into any transaction with any director or ~~expressly contemplated by this Agreement, (x) set forth in Section 5.01~~ officer of the ~~Company Letter~~Company; or (xxviii) authorize, resolve, agree to take (yby Contract or otherwise) ~~required by applicable Law~~ or ~~(z) consented~~ make any commitment to ~~in advance in writing by Parent~~ take, or ~~Buyer (such consent not~~ otherwise become obligated to ~~be unreasonably withheld~~take, ~~conditioned or delayed),~~ any of the ~~Company shall not, and shall cause its Subsidiaries not to:~~foregoing actions that are prohibited pursuant to this Section 6.1.3.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Stillwater Mining Co /De/)

Conduct of the Company. From the date of this Agreement until the ~~Closing or~~ earlier of the ~~earlier~~ Effective Time and the valid termination of this ~~Agreement in accordance with Article 8 (the “Pre-Closing Period”)~~Agreement, except (x) as required by Applicable Law, (iy) ~~expressly~~ as set forth in Section ‎6.01 of the Company Disclosure Schedule, or (z) as otherwise required or expressly ~~contemplated~~ permitted by this Agreement, ~~(ii) set forth in Section 5.01 of the Company Letter, (iii) required by applicable Law or (iv) consented to in advance~~ unless Parent shall otherwise consent in writing ~~by Parent or Buyer~~ (~~such~~ e-mail being sufficient) (which consent shall not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, ~~(A)~~ conduct its business ~~in all material respects~~ in the ordinary course of business consistent with past ~~practice~~practice and use its commercially reasonable efforts to (A) preserve intact its business organization and relationships with customers, members, suppliers, lenders, licensors, licensees, Governmental Authorities with jurisdiction over the Company’s operations and other Third Parties having material business relationships with the Company and its Subsidiaries, (B) ~~use its reasonable best efforts to preserve intact~~ maintain in effect all material ~~respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the~~ Company ~~has material business relationships and keep available the services of its present officers and key employees~~ Permits and (C) ~~use commercially reasonable efforts to undertake~~ maintain and preserve the ~~actions enumerated in Section 5.01-1 of~~ goodwill associated with its business, affairs and properties, its reputation and its brand value; provided that neither the Company ~~Letter; provided, that none of the Company or~~ nor any of its Subsidiaries shall ~~be required~~ take any action to comply with the foregoing that would breach any of Section ‎6.01(a) through (or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed) make any payments to its business relationship counterparties, beyond that paid in the ordinary course of business in order to maintain such business relationshipsr). ~~In addition to and without~~ Without limiting the generality of the foregoing, ~~during~~ from the ~~Pre-Closing Period~~date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement, except (x) as required by Applicable Law, (wy) ~~expressly~~ as set forth in Section ‎6.01 of the Company Disclosure Schedule, or (z) as otherwise required or expressly ~~contemplated~~ permitted by this Agreement, without Parent’s prior written consent (~~x) set forth in Section 5.01 of the Company Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such~~ which consent shall not to be unreasonably withheld, conditioned or ~~delayed~~delayed (other than with respect to ‎Section 6.01(c) or ‎Section 6.01(d)), the Company shall not, and shall cause each of its Subsidiaries not to: (a) adopt or propose any change to its certificate of incorporation, bylaws or other organizational documents (whether by merger, consolidation or otherwise) (including the Company Organizational Documents); (b) (i) merge or consolidate with any other Person, (ii) acquire (including by merger, consolidation, or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, securities or property, other than (A) acquisitions of assets, securities or property in the ordinary course of business consistent with past practice in an amount not to exceed $25,000,000 in the aggregate for all such acquisitions, (B) acquisitions of securities under the Company’s investment portfolio consistent with the Company’s investment policy in effect as of the date hereof, (C) acquisitions of any interest in partnerships, joint ventures or similar entities in an amount not to exceed $25,000,000 in aggregate purchase price for all such interests and (D) transactions (1) solely among the Company and one or more of its wholly owned Subsidiaries or (2) solely among the Company’s wholly owned Subsidiaries, or (iii) adopt or publicly propose a plan of complete or partial liquidation, dissolution, recapitalization, restructuring or other reorganization, or resolutions providing for or authorizing such a liquidation, dissolution, recapitalization, restructuring or other reorganization; (c) (i) split, combine or reclassify any Company Securities (whether by merger, consolidation or otherwise) (other than transactions (1) solely among the Company and one or more of its wholly owned Subsidiaries or (2) solely among the Company’s wholly owned Subsidiaries), (ii) amend any term or alter any rights of any of Company Securities (whether by merger, consolidation or otherwise), (iii) declare, set aside or pay or make any dividend or any other distribution (whether in cash, stock, property or any combination thereof) in respect of any Company Securities or Company Subsidiary Securities (other than dividends or distributions by a Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company) (in the case of this clause (iii), other than (A) in the case of the Company, (x) regular cash dividends in the ordinary course of business consistent with past practice (including with respect to record and payment dates) in an amount not to exceed $0.14 per share of Company Common Stock per quarter (appropriately adjusted to reflect any stock dividends, subdivisions, splits, combinations or other similar events relating to Company Common Stock) or (y) dividends required to be paid in accordance with the terms of the Company Series A Preferred Stock and the Company Series B Preferred stock, in each case, as in effect on the date of this Agreement or (B) dividends or distributions by a Subsidiary of the Company to the Company or a Subsidiary of the Company), or (iv) redeem, repurchase, cancel or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or Company Subsidiary Securities, other than repurchases of shares of Company Common Stock in connection with the exercise of Company Stock Options or the vesting or settlement of Company RSU Awards (including any DERs credited thereon), Company PSU Awards (including any DERs credited thereon), Company Director Restricted Stock Awards and Company Director Deferred RSU Awards (including any DERs credited thereon), in each case in accordance with the terms the Company Stock Plans and of such Company Equity Awards; (d) issue, deliver or sell, or authorize the issuance, delivery or sale of, any Company Securities or Company Subsidiary Securities, other than (i) the issuance of any shares of Company Common Stock upon the exercise of Company Stock Options, the vesting or settlement of shares of Company RSU Awards (including any DERs credited thereon), Company PSU Awards (including any DERs credited thereon), Company Director Restricted Stock Awards and Company Director Deferred RSU Awards (including any DERs credited thereon) in accordance with the terms of the Company Stock Plans and such Company Equity Awards, (ii) the grant of any Company Equity Award in accordance with Section 6.01(l) of the Company Disclosure Schedule, (iii) the issuance of any Company Subsidiary Securities to the Company or any wholly owned Subsidiary of the Company or (iv) the issuance of any shares of Company Common Stock necessary to comply with applicable regulatory capital requirements; (e) authorize, make or incur any capital expenditures or obligations or liabilities in connection therewith, other than (i) as contemplated by the capital expenditure budget that has been made available to Parent prior to the date of this Agreement and is set forth on Section ‎6.01(e) of the Company Disclosure Schedule and (ii) any other capital expenditures not to exceed $2,500,000 in the aggregate; (f) sell, lease, license, sublicenses, transfer or otherwise dispose of (by merger, consolidation, sale of stock or assets or otherwise), or fail to take any action necessary to maintain, enforce or protect, directly or indirectly, any Subsidiary or any division thereof or of the Company or any assets, securities, interests, businesses or property, other than (i) in the ordinary course of business consistent with past practice for fair market value in an amount not to exceed $25,000,000 in the aggregate, (ii) dispositions of securities under the Company’s investment portfolio consistent with the Company’s investment policy in effect as of the date hereof, or (iii) transactions (A) solely among the Company and one or more of its wholly owned Subsidiaries or (B) solely among the Company’s wholly owned Subsidiaries; (g) sell, assign, license, sublicense, abandon, allow to lapse, transfer or otherwise dispose of (by merger, consolidation, sale of stock or assets or otherwise), create or incur any Lien (other than a Permitted Lien) on or otherwise fail to take any action necessary to maintain, enforce or protect, directly or indirectly, any of the Company’s material Owned Intellectual Property or Licensed Intellectual Property, other than in the ordinary course of business consistent with past practice (i) pursuant to non-exclusive licenses or (ii) for the purpose of disposing of obsolete or worthless assets; (i) make any loans or extensions of credit (except for loans under Regulation T, Regulation U and/or the Community Reinvestment Act of 1977) in excess of $10,000,000 in a single transaction or renewals of loans or extensions of credit in excess of $25,000,000, in each case (it being understood that Parent shall be required to respond to any request for a consent to make such loan or extension of credit in writing within two (2) business days after the loan package is delivered to Parent), or make any advances or capital contributions to, or investments in, any other Person, other than loans, advances or capital contributions (A) by the Company to one or more of its wholly owned Subsidiaries or (B) by any Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company, or (ii) other than in connection with ordinary course activities related to the operations of the Company Bank Subsidiary or the Company Broker-Dealer Subsidiary, incur, assume, suffer to exist or otherwise be liable with respect to, or guarantee or repurchase, or enter into any Contract with respect to (in each case, whether evidenced by a note or other instrument, pursuant to an issuance of debt securities, financing lease, sale-leaseback transaction or otherwise), any indebtedness for borrowed money, other than any issuances of subordinated debt necessary to comply with applicable regulatory capital requirements or additional borrowings under or refinancings or renewals (of an equivalent or lesser principal amount except any increase in the principal amount by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing or renewal) of the Company Debt on standard market terms available at such time (provided that no such renewals or refinancings shall include prepayment penalties); (i) create or incur any Lien (except for a Permitted Lien) on any material asset other than Liens created or incurred under the Company Debt or Company Notes or similar Liens under any other permitted indebtedness under Section 6.01(h)(ii), and Liens on assets subject to capital leases entered into in the ordinary course of business; (j) (i) enter into any Company Material Contract (including (x) by amendment of any Contract that is not a Company Material Contract such that such Contract becomes a Company Material Contract or (y) through acquisition of a subsidiary that is bound by a Company Material Contract) (in each case, other than in the ordinary course of business with respect to a Company Material Contract solely of a type described in Section 4.20(a)(i), Section 4.20(a)(iii), Section 4.20(a)(iv), Section 4.20(a)(v), Section 4.20(a)(vii) and, to the extent permitted under Section 6.01(b)(ii)(C), Section 4.20(ix)), (ii) terminate, renew, extend or amend in any material respect any Company Material Contract or waive any material right thereunder (other than in the ordinary course of business with respect to a Company Material Contract described in Section 4.20(a)(i) and not described in any other clause of Section 4.20(a)); provided, however that nothing in this Section ‎6.01(j) shall prevent or restrict the Company and its Subsidiaries from entering into, renewing, extending or amending any customer Contract (other than any such Contract described in any clause of Section 4.20(a) other than Section 4.20(a)(i)) with respect to the Company’s corporate services business; (k) terminate, amend or modify any material Company Permit in a manner material and adverse to the Company and its Subsidiaries, taken as a whole; (l) except as required by any Company Employee Plan as in effect as of the date hereof, (i) grant any change in control, retention, severance or termination pay to (or amend any existing arrangement with) any of their respective current or former Company Service Providers, (ii) except as in the ordinary course of business consistent with past practices, enter into any employment, offer letter, term sheet, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any of their respective current or former Company Service Providers, (iii) establish, adopt, amend or enter into any material Company Employee Plan, other than in connection with routine, immaterial or ministerial amendments to health and welfare plans that do not materially increase benefits or result in a material increase in administrative costs, or Company Collective Bargaining Agreement, (iv) grant any equity or equity-based awards to, or discretionarily accelerate the vesting or payment of any such awards held by, any current or former Company Service Provider, (v) increase the compensation, bonus or other benefits payable to any of their respective current or former Company Service Providers, (vi) hire any Key Employees or (vii) terminate (other than for cause) any Key Employees; (m) make any material change in any method of accounting or accounting principles or practice, except for any such change required by reason of a change in GAAP or Regulation S-X under the Securities Exchange Act (“Regulation S-X”), as approved by its independent public accountants; (n) enter into any material new line of business; (i) make or change any material Tax election; (ii) change any annual Tax accounting period; (iii) adopt or change any material method of Tax accounting; (iv) enter into any material closing agreement with respect to Taxes (other than a closing agreement described in clause (v) of this Section 6.01(o)); or (v) settle or surrender (including by entering into a closing agreement) any Tax claim, audit or assessment involving potential payments, or reductions in deferred tax assets, by the Company and its Subsidiaries in excess of $5,000,000; (p) settle or compromise, or offer or propose to settle or compromise, any claim, action, suit, dispute, investigation, regulatory examination, arbitration, or other Proceeding, whether pending or threatened, (i) involving or against the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice (provided that any individual settlement or compromise or any series of related settlements or compromises involving payments by the Company and its Subsidiaries in excess of $5,000,000 individually or $15,000,000 in the aggregate (in each case, net of any amounts that may be paid under one or more existing insurance policies) or providing for any non-monetary relief shall be deemed not to be in the ordinary course of business), (ii) that relates to the Transactions or (iii) initiated by a stockholder of the Company; (q) enter into or materially expand any business outside of the U.S. and its territories; or (r) agree, resolve, authorize, commit or propose to do any of the foregoing.

Appears in 1 contract

Samples: Merger Agreement (Morgan Stanley)

Conduct of the Company. ~~From~~ The Company agrees that between the date of this Agreement ~~until~~ and the ~~Closing~~ Effective Time or the ~~earlier termination of~~ date, if any, on which this Agreement is terminated pursuant to Section 8.01, except (a) as set forth in ~~accordance with Article 8~~ Schedule 6.01, (~~the “Pre-Closing Period”~~b) as expressly required pursuant to or expressly permitted by this Agreement (including Section 6.02 and Section 6.03), ~~except~~ (c) as required by Applicable Law or (d) as consented to in writing in advance by Parent, the Company shall (i) ~~expressly required or expressly contemplated by this Agreement~~conduct its businesses in all material respects in the ordinary course consistent with past practice, (ii) use commercially reasonable efforts to preserve materially intact its current business organization and to preserve in all material respects the relationships of the Company and its Subsidiaries with Company Franchisees and the franchise system as a whole, employees, suppliers, licensors, licensees, distributors, wholesalers, lessors and others having business dealings with the Company or any of its Subsidiaries, (iii) use commercially reasonable efforts to keep and maintain the assets and properties of the Company and its Subsidiaries in accordance with past practice, normal wear and tear excepted, and (iv) comply in all material respects with Applicable Law. Without limiting the generality of the foregoing, except (a) as set forth in Schedule 6.01, (b) as expressly required pursuant to or expressly permitted by this Agreement (including Section 6.02 and Section 6.03), (c) as required by Applicable Law, or (d) as consented to in writing in advance by Parent (which consent shall not be unreasonably withheld, delayed or conditioned with respect to clauses (e)(C), (k), (l), (m), (q) or (r) of this Section 6.01), the Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.01, the Company shall not, and shall not permit any of its Subsidiaries to: (a) amend the Company’s Governing Documents or other comparable charter or organizational documents of the Company’s Subsidiaries (whether by merger, consolidation or otherwise); (b) establish a record date for, declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or other equity, property or otherwise, including any combination thereof) in respect of, or enter into any Contract with respect to the voting of, any capital stock of the Company or any capital stock or other Equity Interests of its Subsidiaries, other than (x) regular quarterly cash dividends consistent with past practice and (y) dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to the Company or any of the Company’s other wholly owned Subsidiaries, adjust, recapitalize, combine, split, combine, subdivide or reclassify any Company Securities or any capital stock or other Equity Interests, or securities convertible, exchangeable or exercisable for capital stock or other Equity Interests, of its Subsidiaries, except as otherwise provided in Section 6.01(c), issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, any Company Securities or any shares of capital stock or other Equity Interests, or securities convertible, exchangeable or exercisable for capital stock or other Equity Interests, of its Subsidiaries or purchase, redeem or otherwise acquire any Company Securities, except for acquisitions of shares of Company Common Stock by the Company in accordance with the terms of Company Equity Awards in effect as of the date hereof; (c) issue, deliver, sell, grant, pledge, transfer, subject to any Lien or otherwise dispose of any Company Securities, other than (w) the issuance of shares of Company Common Stock upon the exercise of Company Stock Options or upon the settlement of Company RSUs, in each case, that are outstanding on the date of this Agreement and in accordance with the applicable equity award’s terms (x) the issuance of shares of the Company Common Stock in accordance with the provisions of Section 2.06(d) hereof or (y) grants or awards of Company Securities required to be made pursuant to the terms of existing employment or other compensation agreements or arrangements in effect as of the date hereof and that are set forth in Section ~~5.01~~ 4.13(a) of the Company ~~Letter~~Disclosure Schedule or amend any term of any Company Security or any outstanding share of capital stock of, or other Equity Interest or voting security in, any Subsidiary of the Company (~~iii~~in each case, whether by merger, consolidation or otherwise); (d) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization with respect to the Company or any of its Subsidiaries; (e) except as required by ~~applicable Law~~ the terms of any Company Benefit Plan in effect on the date hereof or ~~(iv) consented~~ to ~~in advance in writing by Parent~~ the extent necessary to comply with, or ~~Buyer (such consent not~~ satisfy an exemption from, Section 409A of the Code without increasing the benefits provided to ~~be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to~~any Person, (A) ~~conduct~~ increase the compensation or other benefits payable or to become payable to officers, directors or employees of the Company, (B) grant any officer, director, or employee of the Company or any of its ~~business~~ Subsidiaries any increase in ~~all material respects~~ severance or termination pay, (C) enter into any employment, consulting, severance or termination agreement with any officer, director or senior employee of the Company or any of its Subsidiaries, except for store-level employees in the ordinary course of business consistent with past practice, (D) establish, adopt, amend or enter into any (1) collective bargaining agreement or other agreement with a labor union, works council or similar organization or (2) Company Benefit Plan, or (E) accelerate any rights or benefits, or make any material determinations, under any Company Benefit Plan; provided, however, the foregoing clauses (A), (B) use its reasonable best efforts to preserve intact in all material respects its business organization and material business relationships with suppliers, vendors, Governmental Authorities, Customers and other Persons with which the Company has material business relationships and keep available the services of its present officers and key employees and (C) ~~use commercially reasonable efforts to undertake~~ shall not restrict the ~~actions enumerated~~ Company from entering into, or making available, plans, agreements, benefits and compensation arrangements (including grants under any Company Benefit Plan) for newly hired employees or employees in ~~Section 5.01-1~~ the context of bona fide individualized promotions, in each case whose annual base compensation is less than $200,000 and in the ordinary course of business and consistent with past practice; (i) sell or acquire (A) any real property (regardless of the consideration payable therefor), (B) any business or capital stock or other securities of or all or substantially all of the assets of any Person or division thereof, whether in whole or in part (and whether by purchase of stock, purchase of assets, merger, consolidation, or otherwise), (C) any material amount of assets, securities, properties, or interests for consideration, in the case of clauses (B) and (C), in excess of $5,000,000 in the aggregate, or (D) any assets, securities, properties or interests to or from any Company ~~Letter~~Franchisee or (ii) enter into any joint venture, strategic alliance or arrangement or make any investment; (g) agree to any exclusivity, non-competition or similar provision or covenant restricting the Company, any of its Subsidiaries or any of their respective Affiliates, from competing in any line of business or with any Person or in any area; (h) make any material change to any of the accounting methods, principles or practices used by the Company, except for such changes that are required by GAAP or Regulation S-X promulgated under the Exchange Act; (i) (i) incur or assume any long-term or short-term indebtedness except for incremental borrowings under the Company Existing Credit Facility in the ordinary course of business consistent with past practice up to a total amount outstanding as of the Closing Date of $115,000,000, or issue any debt securities; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the material obligations of any other Person for borrowed money; (iii) make any loans, advances or capital contributions to, or investments in, any other Person in a material amount; or (iv) cancel any material indebtedness or waive any claims or rights of substantial value, in each case, other than in the ordinary course of business; (j) make, change, or revoke any material Tax election; file any amended income or other material Tax Return; change any annual Tax accounting period; adopt or change any method or practice of Tax accounting; enter into any closing agreement, Tax sharing agreement or Tax indemnity agreement; settle, compromise, concede or abandon any Tax contest or Tax claim, audit or assessment with respect to a material amount of Taxes; surrender any right to claim a material Tax refund; or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; (k) make any capital expenditures or incur any obligations or liabilities in respect thereof, except in accordance with the capital expenditures budget for the Company made available to Parent; (l) settle any claim or litigation, in each case, made by or pending against the Company or any of its Subsidiaries, or any of its or their respective officers and directors in their capacities as such, other than the settlement of claims or litigation in the ordinary course of business consistent with past practice that do not require payment by the Company or any Subsidiary of an amount in excess of $350,000 individually or $1,000,000 in the aggregate; provided, however, neither the Company nor any Subsidiary thereof shall be permitted to settle any claim or litigation that ~~none~~ would involve injunctive or equitable relief, impose any restrictions or changes on the business or operations of the Company or any of its Subsidiaries or of any present or future Affiliate of the Company or any of its Subsidiaries (including, after the Effective Time, Parent and its other Subsidiaries), or involve any admission of any wrong doing by the Company or any of its Subsidiaries; (i) modify, amend, waive or fail to enforce, in each case in any material respect, or assign to any Third Party or terminate any (A) Material Contract, or (B) franchise Contract, development Contract or similar Contract with any Company Franchisee other than extension for time or temporary and short-term modifications of royalty payments in the ordinary course of business consistent with past practice, or (ii) enter into a Contract (A) that would, if entered into prior to the date hereof, be a Material Contract, other than supply Contracts entered into in the ordinary course of business (provided, that the Company shall provide reasonable advance notice to, and reasonably consult with Parent, prior to entering into a supply Contract with a term of longer than 1 year or that would not be terminable upon thirty (30) days’ notice or less without material payment or penalty) or (B) that is a franchise Contract, development Contract or similar Contract with a Company Franchisee, other than, in the case of this clause (B), such Contracts entered into in the ordinary course that are substantially on the Company’s standard form; (n) sell, assign, lease, license, sublicense, terminate, abandon, waive, allow to lapse or otherwise transfer or dispose of, create or incur any Lien (other than Permitted Liens) on, or grant any interest in or rights with respect to, any Company Intellectual Property (except for licenses contained in franchise Contracts, development Contracts or similar Contracts with Company Franchisees entered into in the ordinary course of business and that conform in all material respects with the Company’s standard form of such Contracts as of the date hereof); (o) implement any employee layoffs that would reasonably be expected to implicate the WARN Act; (p) authorize, commit or agree to take any of the foregoing actions; (q) except as required by any Contract entered into, and made available to Parent prior to, the date of this Agreement, open any restaurant in a country or state where the Company or a Subsidiary thereof does not currently have an owned or franchised restaurant, or otherwise engage in any other operations in any country or state in which the Company or a Subsidiary thereof does not currently conduct other operations; or (~~or shall without Parent’s or Buyer’s prior consent, not to be unreasonably withheld, conditioned or delayed~~r) make any ~~payments~~ material change to the terms of the Company’s or any of its Subsidiaries’ system-wide or region-wide policies or procedures with respect to its relationships with any Company Franchisees, including any existing or new policies relating to (i) system-wide or region-wide Company Franchisee rent, royalty or other fees and charges, or maintenance of advertising funds, (ii) system-wide or region-wide franchisee incentives or franchisee economic assistance, or (iii) mandates relating to equipment, hardware or software (except for technical updates to existing system-wide or region-wide mandates in the ordinary course of business ~~relationship counterparties~~consistent with past practice) (provided that in all cases the Company shall provide reasonable advance notice to, ~~beyond~~ and reasonably consult with, Parent prior to any taking such actions in this clause (r)). Notwithstanding the foregoing, (x) nothing contained in this Agreement shall give to Parent or Merger Sub, directly or indirectly, rights to control or direct the operations of the Company and its Subsidiaries prior to the Effective Time, (y) prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations and (z) nothing contained in this Agreement shall prevent the Company and its Subsidiaries from buying restaurant locations from, or selling restaurant locations to, existing Company Franchisees (provided, however, that ~~paid~~ the Company shall provide reasonable advance notice to, and reasonably consult with, Parent prior to selling or agreeing to sell any restaurant location owned by the Company on the date of this Agreement), entering into franchise and development agreements in the ordinary course of business in ~~order~~ a manner consistent with clause (m) above, or opening or closing restaurant locations in accordance with plans previously furnished to ~~maintain such business relationships. In addition to~~ Parent (including leasing, purchasing and ~~without limiting the generality~~ disposing of ~~the foregoing~~real property in connection therewith), ~~during the Pre-Closing Period, except as (w) expressly required~~ and provided that any sales or ~~expressly contemplated~~ grants of new franchise and development agreements by ~~this Agreement, (x) set forth in Section 5.01 of~~ the Company ~~Letter, (y) required by applicable Law or (z) consented to in advance in writing by Parent or Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not,~~ and ~~shall cause~~ its Subsidiaries ~~not to:~~are conducted in compliance with all Franchise Laws and any other Applicable Laws.

Appears in 1 contract

Samples: Merger Agreement (Del Taco Restaurants, Inc.)

Common use of Conduct of the Company Clause in Contracts