Covenants of Parent. From the date of this Agreement until the Effective Time, except (i) as otherwise expressly required by this Agreement, (ii) as the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the Parent Disclosure Letter, Parent will not and will not permit its Subsidiaries to: (i) adopt or propose any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security of Parent, Merger Sub or any of Parent’s Subsidiaries; (ii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan; (iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions; (iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing; (v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries); (vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting; (vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock; (viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the date of this Agreement that have been disclosed to the Company prior to the date of this Agreement; (ix) enter into any new line of business, or fundamentally change any existing line of business; or (x) agree, authorize or commit to do any of the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Ak Steel Holding Corp)
Covenants of Parent. From the date of this Agreement until the Effective Time, except (i) as otherwise expressly required by this Agreement, (ii) as unless the Company may approve shall otherwise consent in writing (such approval which consent shall not to be unreasonably withheld, conditioned withheld or delayed) or (iii) except as set forth in Section 5.2 of the Parent Disclosure LetterLetter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent will not shall, and will not permit its shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective Time, without the prior written consent of the Company, Parent shall not directly or indirectly:
(ia) adopt amend or propose modify any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security Constituent Documents of Parent, Merger Sub or any of Parent’s Subsidiaries;
(iib) (i) declare, set aside, make or pay any dividend or other distribution, payable distribution (whether in cash, stock, property stock or otherwise, with property) in respect to of any of its capital stock or repurchase any Parent Shares at a premium; provided thatSecurities of Parent, in each case solely to the extent in compliance other than quarterly dividends consistent with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (yii) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans split, combine or reclassify any similar Parent plan;
Securities of Parent, (iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, deliver or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, sell any shares Securities of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securitiesParent, other than the issuance of (A) the issuance and delivery of shares of Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent benefit plan as in accordance with the terms as of effect on the date of this Agreement of those grantsAgreement; provided that the foregoing clause (Biii) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under shall apply only until the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregateAcceptance Time, or (Div) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to Contracts any Parent benefit plan as in effect prior to the date of this Agreement that have been disclosed to the Company prior to on the date of this Agreement;
(ixc) enter into acquire (or permit any new line of businessParent Subsidiary to acquire) by merging or consolidating with, or fundamentally change by share exchange, or by purchase or by any existing line other manner, any Person or division, business or equity interest of businessany Person, other than acquisitions that would not reasonably be expected to prevent or delay or impede the consummation of the transactions contemplated by this Agreement;
(d) adopt or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parent; or
(xe) agreeauthorize, authorize resolve, agree or commit to do any of the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Covenants of Parent. From the date of Except as expressly contemplated by this Agreement until the Effective Time, except (i) as otherwise expressly required by this Agreement, (ii) as the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in Section 5.02 of the Parent Disclosure Letter, Parent will shall not (and will shall not permit any of its Subsidiaries to:), without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed):
(ia) adopt or propose any change Solely in (A) Parent’s Third Amended Articles of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security case of Parent, Merger Sub or any of Parent’s Subsidiaries;
(ii) declare, set aside, make declare or pay any dividend dividends on or make any other distribution, payable distributions (whether in cash, stock or property) in respect of any of its capital stock, property or otherwisesplit, with respect to combine or reclassify any of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, issue or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance issuance of any other securities in respect of, any shares in lieu of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except substitution for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viiib) transferAcquire or agree to acquire by merging or consolidating with, sellor by purchasing an equity interest in or any of the assets of, leaseor by any other manner, licenseany business or any corporation, mortgagepartnership or other business organization or division, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of acquire or agree to acquire any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except assets (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided inventory and other items in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate), or (D) pursuant take any other action, in any such case that could reasonably be expected to Contracts in effect prior to delay, prevent or interfere with the date consummation of this Agreement that have been disclosed to the Company prior to the date of this AgreementMerger;
(ixc) enter into Amend or propose to amend its charter or by-laws in a manner that would reasonably be expected to adversely impact (i) the consummation of the Merger or (ii) the Company or its stockholders, other than in the same respect as all other holders of Parent Common Stock;
(d) Change any new line method or principle of businessfinancial accounting in a manner that is inconsistent with past practice, except to the extent required by GAAP or change in Law as advised by Parent’s regular independent accountants, make or change any material tax election, or fundamentally change settle or compromise any existing line material Tax Liability or refund;
(e) Take any action that is intended or would reasonably be expected to result in any of businessthe conditions to the Merger in Article VII not being satisfied; or
(xf) agreeTake, authorize or commit agree in writing or otherwise to do take, any of the foregoingactions described in paragraphs (a) through (e) above. Nothing contained in this Agreement shall give the Company, directly or indirectly, rights to control or direct Parent’s operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its operations.
Appears in 2 contracts
Samples: Merger Agreement (Grant Prideco Inc), Merger Agreement (National Oilwell Varco Inc)
Covenants of Parent. From the date of this Agreement until the Effective Time, except (iA) as otherwise expressly contemplated by this Agreement or required by this Agreementapplicable Law, (iiB) as the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) ), or (iiiC) as set forth in the relevant subsection of Section 6.1(b) of the Parent Disclosure Letter, Parent will not and will not permit its Subsidiaries tonot:
(i) adopt or propose any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s its certificate of incorporation or by-laws laws, or other applicable governing instruments or (C) the material terms of any security of Parent, Merger Sub or any of Parent’s Subsidiaries;
(ii) reclassify, split, combine, subdivide or redeem, directly or indirectly, any of its capital stock;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent SharesShares in an amount not in excess of $0.46 per Parent Share per fiscal quarter, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or Plans, any similar Parent plan;
(iiiiv) acquire restructure, reorganize or completely or partially liquidate (by mergerexcept for (A) any such transactions among its wholly owned Subsidiaries or (B) any restructuring, consolidation, acquisition reorganization or complete or partial liquidation of stock or assets or otherwiseMPLX), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(ivv) make any material changes to Merger Sub 1’s certificate of incorporation or by-laws or Merger Sub 2’s certificate of formation or limited liability company agreement, or any of their governing documents;
(vi) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any Person or any business or division thereof, or otherwise acquire any assets, unless such acquisition or the entering into of a definitive agreement relating to or the consummation of such transaction would not reasonably be expected to (A) impose any material delay in the obtaining of, or increase in any material respect the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Entity necessary to consummate the Merger or the expiration or termination of any applicable waiting or approval period, (B) increase the risk in any material respect of any Governmental Entity entering an order prohibiting the consummation of the Merger, or (C) increase in any material respect the risk of not being able to remove any such order on appeal or otherwise;
(vii) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the exercise or settlement of any grants made under any Parent Stock Plan Plan, that are outstanding on the date of this Agreement or any similar Parent plan permitted to be granted after the date of this Agreement pursuant to this Section 6.1(b)(vii)(C), in each case, in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Parent Subsidiary of Parent to Parent or any other Subsidiary of Parent; or (C) any grants under the Parent Stock Plan, or any similar Parent plan, or Plan in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries consistent with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the date of this Agreement that have been disclosed to the Company prior to the date of this Agreement;
(ix) enter into any new line of business, or fundamentally change any existing line of businesspast practice; or
(xviii) agree, authorize or commit to do any of the foregoing; provided, however, that nothing contained in this Agreement, including this Section 6.1(b), shall limit or restrict MPLX, so long as any action taken by MPLX does not prevent, materially delay, materially impair or have a material adverse effect on the ability of Parent to perform its obligations under this Agreement or to consummate the Merger and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Andeavor), Merger Agreement (Marathon Petroleum Corp)
Covenants of Parent. From Parent covenants and agrees with the date of this Agreement until Administrative Agent and the Effective Time, except Lenders that:
(a) Parent shall not conduct or otherwise engage in any business or operations other than (i) as otherwise expressly required transactions contemplated by this Agreementthe Loan Documents or the provision of administrative, legal, accounting and management services to or on behalf of Borrower or any of its Subsidiaries, (ii) as the Company may approve ownership of the equity interests of Borrower and any general partner of the Borrower (or any successor thereto), and the exercise of rights and performance of obligations (including entering into guarantees and pledge agreements) in writing (such approval not to be unreasonably withheldconnection therewith, conditioned or delayed) or (iii) as set forth the entry into, and exercise of rights and performance of obligations in the Parent Disclosure Letter, Parent will not and will not permit its Subsidiaries to:
(i) adopt or propose any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations or other applicable governing instrumentsrespect of, (B1) Merger Sub’s certificate of incorporation or by-laws or this Agreement and the other applicable governing instruments or (C) Loan Documents to which Parent is a party, and any other agreement to which Parent is a party on the material terms of any security of Parent, Merger Sub or any of Parent’s Subsidiaries;
(ii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or repurchase any Parent Shares at a premium; provided thatdate hereof, in each case solely as amended, supplemented, waived or otherwise modified from time to time, and any refinancings, refundings, renewals or extensions thereof, (2) contracts and agreements with officers, directors and employees of Parent or Borrower relating to their employment or directorships, (3) insurance policies and related contracts and agreements, and (4) equity subscription agreements, registration rights agreements, voting and other stockholder agreements, engagement letters, underwriting agreements and other agreements in respect of its equity securities or any offering, issuance or sale thereof, (iv) the extent offering, issuance and sale of its equity securities, (v) the filing of registration statements, and compliance with applicable reporting and other obligations, under federal, state or other securities laws, (vi) the listing of its equity securities and compliance with applicable reporting and other obligations in connection therewith, (vii) the retention of transfer agents, private placement agents, underwriters, counsel, accountants and other advisors and consultants, (viii) the performance of obligations under and compliance with the credit agreementsParent LP Agreement, indentures and other Contractual obligations or any applicable law, ordinance, regulation, rule, order, judgment, decree or permit, including, without limitation, as a result of Parent or in connection with the activities of Borrower and its Subsidiaries, (xix) Parent the incurrence and payment of its operating and business expenses and any taxes for which it may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practicebe liable, and (yx) other activities incidental or related to the foregoing.
(b) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfershall not own, lease, license, guarantee manage or encumbrance of, otherwise operate any shares of its capital stock properties or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, assets (other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the activities described in Section 9.20(a)), or incur, create, assume or suffer to exist any Indebtedness of Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) such as may be incurred, created or assumed or exist in connection with goods or services provided the activities described in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the date of this Agreement that have been disclosed to the Company prior to the date of this Agreement;
(ix) enter into any new line of business, or fundamentally change any existing line of business; or
(x) agree, authorize or commit to do any of the foregoingSection 9.20(a)).
Appears in 2 contracts
Samples: Credit Agreement (EV Energy Partners, LP), Credit Agreement (EV Energy Partners, LP)
Covenants of Parent. From During the period from the date of this Agreement and continuing until the earlier of the Effective TimeTime and the termination of this Agreement in accordance with its terms, Parent agrees as to itself and its Subsidiaries that, except (i) as otherwise expressly required contemplated or permitted by this Agreement, (ii) as required by applicable Law, as set forth in Section 6.2 of the Parent Disclosure Letter or to the extent that the Company may approve shall otherwise consent in writing (such approval consent not to be unreasonably conditioned, delayed or withheld), conditioned or delayed) or (iii) Parent and its Subsidiaries shall carry on their respective businesses in the usual, regular and ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, as required by applicable Law, as set forth in Section 6.2 of the Parent Disclosure LetterLetter or to the extent that the Company shall otherwise consent in writing (such consent not to be unreasonably conditioned, delayed or withheld), Parent will not shall not, and will in the case of clauses (d) and (e) and, solely as it relates to clauses (d) and (e), shall not permit any of its Subsidiaries to:
(ia) adopt or propose any change in (A) Parent’s Third Amended Articles respect of Incorporation or Regulations or other applicable governing instrumentsParent only, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security of Parent, Merger Sub or any of Parent’s Subsidiaries;
(iii) declare, set aside, make aside or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumberpay, or authorize the issuancepropose to declare, sale, pledge, disposition, grant, transfer, lease, license, guarantee set aside or encumbrance ofpay, any shares of its capital stock dividends on or make other distributions in respect of any of its Subsidiariesshare capital, options or securities convertible warrants (whether in cash, shares or exchangeable into or exercisable for any shares of such capital stock, property or any optionscombination thereof), warrants or other rights of any kind except for regular dividends paid to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary holders of Parent; (C) any grants under the Parent Stock Plan, ’s preferred shares or any similar Parent plan, Parent’s subordinate voting shares or multiple voting shares in the ordinary course of business consistent with past practices, (ii) adjust, split, combine or (D) as may be required by any Contracts governing indebtednessreclassify, including the Financing;
(v) (A) merge or consolidate itself propose to adjust, split, combine or reclassify, any of its Subsidiaries with share capital, or any other Person securities in respect of, in lieu of or in substitution for, shares of its share capital, (iii) amend or waive the terms of any option, warrant or other right to acquire newly issued shares of its share capital, or (Biv) restructurerepurchase, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase redeem or otherwise acquire, directly propose to repurchase, redeem or indirectlyotherwise acquire, any shares of its share capital stock or any securities convertible or exchangeable into or exercisable for any shares of its capital stock;
share capital, except in the case of clause (viii) transferiv), sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose in the case of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods “cashless exercise” provision expressly provided for under the terms of options or services provided in the ordinary course warrants outstanding as of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the date of this Agreement that have been disclosed to the Company prior to or awarded or granted following the date of this AgreementAgreement in accordance with the terms of this Agreement or in connection with tax withholding upon the exercise of stock options or the vesting of restricted stock units or (B) redemptions or repurchases of Parent’s preferred shares or common shares pursuant to Parent’s previously announced normal course issuer bid;
(ixb) enter into issue or sell any new line of businessParent Shares as consideration for, or fundamentally change to finance, the acquisition of, merger with, or purchase of a material interest in, any existing line other Person (other than the Company solely (i) as contemplated by the Offer Price or (ii) in connection with any amendment or waiver of businessthis Agreement pursuant to Section 7.4(h)) at a price per Parent Share that is less than the USD Equivalent of CAD$614.45 at the time of the entry into the agreement providing for such acquisition, merger or purchase; provided, however that Parent shall not be prohibited from or otherwise restricted in issuing or selling Parent Shares in such circumstances in an amount not to exceed $500,000,000 in the aggregate (based on the USD Equivalent of the price per Parent Share at the respective time of the entry into each such agreement providing for such acquisition, merger or purchase); provided, further, that, notwithstanding anything herein to contrary, Parent shall, except as expressly prohibited above in this clause (b), be permitted to issue, deliver, pledge, encumber, dispose of, or sell, any shares of its share capital of any class, any share appreciation rights or any securities convertible or redeemable into or exercisable or exchangeable for, or any right, warrants or options to acquire, any such shares;
(c) amend or propose to amend (whether by merger, amalgamation, scheme of arrangement, consolidation or otherwise) its articles of incorporation or by-laws or waive any requirement thereof, except for the filing of articles of amendment to create a new series of preferred shares;
(d) other than in connection with transactions related to Parent Investment Assets, amalgamate, merge or consolidate with any other Person, or acquire or agree to acquire, by amalgamating, merging or consolidating with, by purchasing a material interest in or a material portion of the assets of, by forming a partnership or joint venture with, or by any other manner, any corporation, partnership, association or other business organization or division thereof, or any material assets, rights or properties, in each case, if such action, individually or together with all other such actions, could reasonably be expected to prevent, inhibit or materially delay the consummation of the Merger;
(e) take any action with the knowledge and intent that it would (i) result in any of the conditions to the Offer set forth in Annex A or the Merger set forth in Article VIII not being satisfied or (ii) materially adversely affect or delay the ability of the parties to obtain any of the Transaction Approvals without imposition of a Burdensome Regulatory Action;
(f) adopt any plan of complete or partial liquidation or dissolution, restructuring, recapitalization or reorganization; or
(xg) agreeagree to, authorize or commit to do make any commitment to, take, or authorize, any of the foregoingactions prohibited by this Section 6.2.
Appears in 2 contracts
Samples: Merger Agreement (Fairfax Financial Holdings LTD/ Can), Merger Agreement (Allied World Assurance Co Holdings, AG)
Covenants of Parent. From During the period from the date of this Agreement and continuing until the Effective Time, except (i) as otherwise expressly required by this AgreementParent shall not, (ii) as the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth and in the Parent Disclosure Lettercase of clauses (d) and (e) and, Parent will not solely as it relates to clauses (d) and will (e), clause (g) shall not permit any of its Subsidiaries to:
(a) (i) adopt or propose any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security of Parent, Merger Sub or any of Parent’s Subsidiaries;
(ii) declare, set asideaside or pay, or propose to declare, set aside or pay, any dividends on or make other distributions in respect of any of its share capital, options or pay any dividend or other distribution, payable warrants (whether in cash, stock, shares or property or otherwiseany combination thereof), with respect (ii) adjust, split, combine or reclassify, or propose to adjust, split, combine or reclassify, any of its capital stock share capital, or repurchase any Parent Shares at a premium; provided thatother securities in respect of, in each case solely to the extent lieu of or in compliance with the credit agreementssubstitution for, indentures and other Contractual obligations shares of Parent and its Subsidiariesshare capital, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) amend or waive the terms of any option, warrant or other right to acquire (by mergershares of its share capital, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issuerepurchase, sellredeem or otherwise acquire, pledgepropose to repurchase, dispose of, grant, transfer, encumber, redeem or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance ofotherwise acquire, any shares of its share capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiariesshare capital, except in the case of clause (other than with respect to equity interests of any Subsidiary of Parent) iv), (A) in connection with goods the case of any “cashless exercise” provision expressly provided for under the terms of options or services provided in the ordinary course warrants outstanding as of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the date of this Agreement that have been disclosed to the Company prior to or awarded or granted following the date of this AgreementAgreement in accordance with the terms of this Agreement or in connection with tax withholding upon the exercise of stock options or the vesting of restricted stock units, or (B) as required by applicable Law;
(ixb) except as permitted by Section 4.2(d), issue, deliver, pledge, encumber, dispose of, or sell, any shares of its share capital of any class, any Voting Debt, any share appreciation rights or any securities convertible or redeemable into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any such shares or Voting Debt, or enter into any new line of business, or fundamentally change any existing line of business; or
(x) agree, authorize or commit agreement with respect to do any of the foregoing, or otherwise make any changes (by combination, merger, amalgamation, scheme of arrangement, consolidation, reorganization, liquidation or otherwise) in its capital structure, other than (i) the issuance of common shares required to be issued upon the exercise or settlement of share options or other equity-related awards outstanding on the date hereof under the Parent Share Plans, (ii) equity awards under the Parent Share Plans in the amounts set forth in Section 4.2(b)(ii) of the Parent Disclosure Letter (provided that any such awards shall not be entitled to accelerated vesting in connection with the consummation of the Merger) and (iii) as permitted by Section 4.2(d);
(c) amend or propose to amend (whether by merger, amalgamation, scheme of arrangement, consolidation or otherwise) its articles of incorporation or bylaws or waive any requirement thereof;
(d) other than in connection with transactions related to its Investment Assets entered into in accordance with its Investment Policy, amalgamate, merge or consolidate with any other Person, or acquire or agree to acquire, by amalgamating, merging or consolidating with, by purchasing a material interest in or a material portion of the assets of, by forming a partnership or joint venture with, or by any other manner, any corporation, partnership, association or other business organization or division thereof, or any material assets, rights or properties, in each case, if such action, individually or together with all other such actions, could reasonably be expected to (i) prevent, inhibit or materially delay the consummation of the Merger or (ii) require Parent to issue equity having a market value in excess of $100 million;
(e) except in accordance with Section 5.4, Section 5.14 or Article VII, take any action with the knowledge and intent that it would (i) result in any of the conditions to the Merger set forth in Article VI not being satisfied or (ii) materially adversely affect the ability of the parties to obtain any of the Transaction Approvals without imposition of a Regulatory Material Adverse Effect;
(f) adopt any plan of complete or partial liquidation or dissolution, restructuring, recapitalization or reorganization;
(g) agree to, or make any commitment to, take, or authorize, any of the actions prohibited by this Section 4.2.
Appears in 2 contracts
Samples: Merger Agreement (ALTERRA CAPITAL HOLDINGS LTD), Merger Agreement (Markel Corp)
Covenants of Parent. From the date of this Agreement until the Effective Time, except (ix) as otherwise expressly contemplated by this Agreement or required by this Agreementapplicable Law, (iiy) as the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) ), or (iiiz) as set forth in the relevant subsection of Section 6.1(b) of the Parent Disclosure Letter, Parent will not and will not permit its Subsidiaries tonot:
(i) adopt or propose any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s its certificate of incorporation or by-laws bylaws, or other applicable governing instruments or (C) the material terms of any security of Parent, Merger Sub or any of Parent’s Subsidiaries;
(ii) reclassify, split, combine, subdivide or redeem, directly or indirectly, any of its capital stock;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual contractual obligations of Parent and its Subsidiaries, (xA) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent SharesShares in an amount not in excess of the amount set forth in Section 6.1(b)(iii) of the Parent Disclosure Letter, in each case in accordance with Parent’s past practice, and (yB) Parent may give effect to dividend equivalent rights with respect to outstanding grants under the Parent Stock Plans or Plan, any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business consistent with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactionspast practice;
(iv) restructure, reorganize or completely or partially liquidate (except for any such transactions among its wholly-owned Subsidiaries);
(v) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any Person or any business or division thereof, or otherwise acquire any assets, unless such acquisition or the entering into of a definitive agreement relating to or the consummation of such transaction would not reasonably be expected to (A) impose any delay beyond the End Date in the obtaining of, or increase in any material respect the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Entity necessary to consummate the Merger or the expiration or termination of any applicable waiting or approval period, (B) increase the risk in any material respect of any Governmental Entity entering an order prohibiting the consummation of the Merger, or (C) increase in any material respect the risk of not being able to remove any such order on appeal or otherwise;
(vi) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan Plan, or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grantsplan; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; or (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide take or redeem, purchase omit to take any action if such action or otherwise acquire, directly or indirectly, omission would reasonably be expected to result in any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) the conditions set forth in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value Article VII not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the date of this Agreement that have been disclosed to the Company prior to the date of this Agreement;
(ix) enter into any new line of business, or fundamentally change any existing line of businessbeing satisfied; or
(xviii) agree, authorize or commit to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Conagra Brands Inc.), Merger Agreement (Pinnacle Foods Inc.)
Covenants of Parent. From Except as permitted or otherwise contemplated by the terms of this Agreement, without the prior written consent of Greenwich, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except (i) as otherwise expressly required by this Agreement, (ii) as Parent shall not do any of the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the Parent Disclosure Letter, Parent will not following and will shall not permit any of its Subsidiaries tosubsidiaries to do any of the following:
(ia) adopt Except as required by law or propose any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) pursuant to the material terms of any security of Parent, Merger Sub or any of Parent’s Subsidiaries2003 Stock Option Plan (the “Parent Option Plan”) in effect as of the date hereof, waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, or reprise options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans;
(iib) declareExcept as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to Greenwich, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(c) Declare, set aside, make aside or pay any dividend dividends on or make any other distribution, payable distributions (whether in cash, stock, property equity securities or otherwise, with property) in respect to of any of its capital stock or repurchase split, combine or reclassify any Parent Shares at a premium; provided thatcapital stock or issue or authorize the issuance of any other securities in respect of, in each case solely to the extent lieu of or in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or substitution for any similar Parent plancapital stock;
(iiid) acquire (by mergerPurchase, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase redeem or otherwise acquire, directly or indirectly, any shares of its capital stock of Parent or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its SubsidiariesVQ Merger Sub, except (other than with respect to equity interests i) repurchases of any Subsidiary of Parent) (A) unvested shares at cost in connection with goods the termination of the employment relationship with any employee pursuant to stock option or services provided purchase agreements in effect on the date hereof (or any such agreements entered into in the ordinary course of businessbusiness consistent with past practice by Parent with employees hired after the date hereof), and (B) sales of obsolete assets, (Cii) for salesthe purpose of funding or providing benefits under any stock option and incentive compensation plans, leasesdirectors plans, licenses and stock purchase and dividend reinvestment plans in accordance with past practice;
(e) Issue, deliver, sell, authorize, pledge or other dispositions otherwise encumber or propose any of assets the foregoing with a fair market value not in excess respect to any shares of $300 million in the aggregatecapital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (Dwhether payable in shares, cash or otherwise) other than the issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to Contracts in effect prior to the date exercise of this Agreement that have been disclosed to the Company prior to stock options or warrants outstanding as of the date of this Agreement;
(ix) enter into any new line of business, or fundamentally change any existing line of business; or
(x) agree, authorize or commit to do any of the foregoing.
Appears in 1 contract
Covenants of Parent. From During the period from the date of this Agreement and continuing until the Effective Time, except (i) as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, Parent and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. Without limiting the generality of the foregoing, and except as previously disclosed by Parent to the Company in writing or as otherwise expressly required contemplated by this Agreement, (ii) as the Company may approve Agreement or consented to in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in by the Parent Disclosure LetterCompany, Parent will not shall not, and will shall not permit any of its Subsidiaries to:
(ia) adopt or propose any change in (A) Parent’s Third Amended Articles amend its Certificate of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security of Parent, Merger Sub or any of Parent’s SubsidiariesBylaws;
(iib) declare, set aside, make declare or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with in respect to any of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Capital Stock Plans or any similar Parent plan;
(iii) acquire (other securities subsequently authorized and issued by mergerParent, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in except that any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent may pay dividends or make other distributions to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(viic) reclassify, combine, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viiid) transfer, sell, leasetransfer, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire sublicense or otherwise dispose of any of its material assets, product lines ;
(e) take any action that is intended or businesses or those of may reasonably be expected to result in any of its Subsidiariesrepresentations and warranties set forth in this Agreement being or becoming untrue, including any equity interests of or in any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior conditions to the date of this Agreement that have been disclosed to the Company prior to the date of this AgreementMerger set forth in Article I not being satisfied;
(ixf) enter into any new line of businessbusiness except as contemplated hereby;
(g) acquire or agree to acquire by merging or consolidating with, or fundamentally change by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any existing line of businessother manner, any business or any corporation, partnership, association or other business organization or division thereof; or
(xh) agreeother than (i) agreements in the ordinary course of business that do not require payments by the Company in excess of $200,000 per year per individual agreement or an aggregate of $600,000 per year for all such agreements and (ii) agreements not in the ordinary course of business that do not require payments by the Company in excess of $100,000 per year per individual agreement or an aggregate of $400,000 per year for all such agreements, authorize create, renew, amend or commit terminate or give notice of a proposed renewal, amendment or termination of, any material contract, agreement or lease for goods, services or office space to which the Company is a party or by which the Company or its properties are bound; or
(i) agree to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Tickets Com Inc)
Covenants of Parent. From Except as permitted by the terms of this Agreement, without the prior written consent of OrthoNetx, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except Parent shall not do any of the following and shall not permit its Subsidiaries to do any of the following: ___________ ___________
(ia) Except as otherwise expressly required by this Agreement, (ii) law or pursuant to the terms of the Parent Option Plan in effect as of the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) date hereof and except as set forth in Section 3.2 above, waive any stock repurchase rights, accelerate, amend or change the Parent Disclosure Letterperiod of exercisability of options or restricted stock, Parent will not and will not permit its Subsidiaries to:
(i) adopt or propose reprise options granted under any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations employee, consultant, director or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation stock plans or by-laws or other applicable governing instruments or (C) the material terms of authorize cash payments in exchange for any security of Parent, Merger Sub or options granted under any of Parent’s Subsidiariessuch plans;
(iib) declareExcept as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to OrthoNetx, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(c) Declare, set aside, make aside or pay any dividend dividends on or make any other distribution, payable distributions (whether in cash, stock, property equity securities or otherwise, with property) in respect to of any of its capital stock or repurchase split, combine or reclassify any Parent Shares at a premium; provided thatcapital stock or issue or authorize the issuance of any other securities in respect of, in each case solely to the extent lieu of or in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or substitution for any similar Parent plancapital stock;
(iiid) acquire (by mergerPurchase, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase redeem or otherwise acquire, directly or indirectly, any shares of its capital stock of Parent or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests i) repurchases of any Subsidiary of Parent) (A) unvested shares at cost in connection with goods the termination of the employment relationship with any employee pursuant to stock option or services provided purchase agreements in effect on the date hereof (or any such agreements entered into in the ordinary course of businessbusiness consistent with past practice by Parent with employees hired after the date hereof), and (B) sales of obsolete assets, (Cii) for salesthe purpose of funding or providing benefits under any stock option and incentive compensation plans, leasesdirectors plans, licenses and stock purchase and dividend reinvestment plans in accordance with past practice;
(e) Issue, deliver, sell, authorize, pledge or other dispositions otherwise encumber or propose any of assets the foregoing with a fair market value not in excess respect to any shares of $300 million in the aggregatecapital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (Dwhether payable in shares, cash or otherwise) other than the issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to Contracts in effect prior to the date exercise of this Agreement that have been disclosed to the Company prior to stock options or warrants outstanding as of the date of this Agreement;
(ixf) Cause, permit or submit to a vote of Parent's stockholders any amendments to the Parent Charter Documents (or similar governing instruments of any of its Subsidiaries), except for the 2005 Parent Stockholder Meeting Changes;
(g) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any new line joint ventures, strategic partnerships or strategic investments; ___________ ___________
(h) Sell, lease, license, encumber or otherwise dispose of businessany properties or assets except in the ordinary course of business consistent with past practice, except for the sale, lease, licensing, encumbering or disposition of property or assets which are not material, individually or in the aggregate, to the business of Parent and its Subsidiaries;
(i) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent, enter into any "keep well" or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing other than in connection with the financing of working capital consistent with past practice;
(j) Adopt or amend employee stock purchase or employee stock option plan, or fundamentally enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable "at will"), pay any special bonus or special remuneration to any director or employee, or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law;
(k) Pay, discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or (ii) waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce the confidentiality or non-disclosure provisions of any agreement to which Parent or any of its Subsidiaries is a party or of which Parent or any of its Subsidiaries is a beneficiary, in the case of both (i) and (ii) of this Section 4.1(l);
(l) Except in the ordinary course of business consistent with past practice, materially modify, amend or terminate any Parent Contracts or waive, delay the exercise of, release or assign any material rights or claims thereunder without providing prior notice to Parent;
(m) Except as required by GAAP, revalue any of its assets or make any change in accounting methods, principles or practices;
(n) Make any existing line Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, individually or in the aggregate, is reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of businessParent or any of its Subsidiaries, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes; or
(xo) agree, authorize Agree in writing or commit otherwise to do take any of the foregoing.actions described in Section 4.2 (a) through (n) above. ___________ ___________
Appears in 1 contract
Samples: Merger Agreement (Eye Dynamics Inc)
Covenants of Parent. (a) From and after the date of this Agreement until the earlier of the Effective TimeTime or the valid termination of this Agreement in accordance with its terms, and except as (i) as otherwise expressly contemplated or required by this Agreement, (ii) as set forth in Section 4.2 of the Company may approve in writing Parent Disclosure Letter, (such approval iii) required by applicable Law, or (iv) with the Company’s prior written consent (which consent is not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the ), each of Parent Disclosure Letterand Merger Sub shall not, Parent will not and will not permit shall cause its Subsidiaries not to:
(i) adopt amend any Organizational Documents of Parent or propose waive any change provision thereunder (whether by merger, consolidation or otherwise) in (A) Parent’s Third Amended Articles a manner that would materially and adversely affect the rights of Incorporation the holders of the Parent Common Stock or Regulations would prevent, materially delay or other applicable governing instruments, (B) Merger Sub’s certificate materially impair the ability of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security of Parent, Parent and Merger Sub to perform their obligations under this Agreement or any of Parent’s Subsidiariesto consummate the transactions contemplated hereby;
(ii) split, combine, subdivide or reclassify any shares of capital stock or other equity interests of Parent;
(iii) declare, set aside, make aside or pay any dividend on or make any other distribution, payable distributions (whether in cash, stock, property or otherwise, ) with respect to any shares of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent or other equity securities or ownership interests in Parent, except for the declaration and its Subsidiariespayment by Parent of dividends on Parent Common Stock pursuant to, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practicewith, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactionsSection 5.9;
(iv) issuerepurchase, sell, pledge, dispose of, grant, transfer, encumber, redeem or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to otherwise acquire any shares of such capital stock or such convertible or exchangeable securitiesof Parent, other than the issuance of except (A) any for acquisitions of shares of Parent Shares upon Common Stock tendered by holders of equity awards under the settlement of any grants made under any Parent Stock Plan or any similar Parent plan Equity Plans in accordance with the terms of the Parent Equity Plan as such awards are in effect on the date of this Agreement in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto or transactions solely between Parent and a wholly owned Subsidiary of Parent or wholly owned Subsidiaries of Parent, (B) acquisitions of shares of capital stock of Parent pursuant to Article IX of Parent’s amended and restated certificate of incorporation and (C) in de minimis amounts;
(v) take any action, or fail to take any action, which would reasonably be expected to cause Parent to fail to qualify as a REIT (provided that in no event shall Parent be required to change its practices, classifications or tax positions as of the date of this Agreement as a result of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
this clause (v) absent changes in applicable Law), or take any action, or knowingly fail to take any action, which action or failure to act could be reasonably expected to prevent the Merger (Afor the avoidance of doubt, regardless of the option selected between the Forward Merger and the Reverse Merger by Parent pursuant to Section 1.1(a) merge and, in the event of a Forward Merger, regardless of whether Merger Sub is treated for U.S. federal and state income Tax purposes as a disregarded entity, a QRS or consolidate itself or any a TRS) from qualifying as a “reorganization” within the meaning of its Subsidiaries with any other Person or (BSection 368(a) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries)of the Code;
(vi) liquidate (completely or partially), wind up, dissolve, place into administration or receivership, enter into any agreement voluntary arrangement or other compromise with creditors, restructure, recapitalize or effect any other reorganization (including any restructuring, recapitalization or reorganization between or among any of Parent or any of its Subsidiaries), or adopt any plan or resolution, or take any other action providing for any of the foregoing, in each case with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;Parent; or
(vii) reclassifyagree to, splitor make any commitment to, combinetake, subdivide or redeem, purchase or otherwise acquire, directly or indirectlyauthorize, any of the actions prohibited or restricted by this Section 4.2.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit or restrict Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Board of Directors of Parent, upon advice of counsel to Parent, is reasonably necessary for Parent to maintain its capital stock qualification as a REIT under the Code and avoid to the extent possible the incurrence of entity level income or securities convertible or exchangeable into or exercisable excise Tax, in each case for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon period or allow to lapse portion thereof ending on or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the Effective Time (including paying a REIT Dividend).
(c) Parent shall (i) use its reasonable best efforts to obtain the opinion of counsel described in Section 6.3(d), (ii) deliver to Cravath, Swaine & Xxxxx LLP (or other nationally recognized law firm reasonably satisfactory to the Company) an officer’s certificate, dated as of the Closing Date (and, if required, as of the effective date of this Agreement that have been disclosed the Form S-4), signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate (including, in the case of a Reverse Merger, the representations and warranties set forth on Section 3.2(n) of the Parent Disclosure Letter) to enable Cravath, Swaine & Xxxxx LLP (or, if applicable, such other nationally recognized law firm) to render the Company prior to opinion described in Section 6.3(c) on the Closing Date (and, if required, as of the effective date of this Agreement;
the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act) (ixa “Parent Tax Representation Letter”); and (iii) enter into any new line of businessdeliver to Parent’s REIT Counsel an officer’s certificate, or fundamentally change any existing line of business; or
(x) agree, authorize or commit to do any dated as of the foregoingClosing Date (and, if required, as of the effective date of the Form S-4), signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable Parent’s REIT Counsel to render the opinion described in Section 6.3(d) on the Closing Date (and, if required, as of the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act).
Appears in 1 contract
Samples: Merger Agreement (New Senior Investment Group Inc.)
Covenants of Parent. From the date of this Agreement until the Effective Time, except (a) Except (i) as otherwise set forth in Section 4.02(a) of the Parent Disclosure Letter, (ii) as required by applicable Law, (iii) as expressly required permitted by this Agreement, (iiiv) as actions taken reasonably and in good faith in response to COVID-19 or in connection with COVID-19 Measures, in each case, in consultation with the Company may approve in writing or (such approval v) with the prior written consent of the Company (which consent will not to be unreasonably withhelddelayed, conditioned withheld or delayedconditioned), during the Pre-Closing Period, Parent shall, and shall cause its Subsidiaries to, (A) or carry on its business in the ordinary course of business consistent with past practice and (iiiB) use reasonable best efforts to maintain and preserve intact its business organization and advantageous business relationships.
(b) Without limiting the generality of Section 4.02(a), during the Pre-Closing Period and except as set forth in on Section 4.02(b) of the Parent Disclosure Letter, or as required by applicable Law, Parent shall not and shall not permit any of its Subsidiaries, without the prior written consent of the Company (which consent will not and will not permit its Subsidiaries be unreasonably delayed, withheld or conditioned), to:
(i) adopt or propose any change amend the Parent Organizational Document in (A) Parent’s Third Amended Articles a manner that would be material and disproportionately adverse to the holders of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s certificate Company Shares relative to the treatment of incorporation or by-laws or other applicable governing instruments or (C) the material terms existing holders of any security of Parent, Merger Sub or any of Parent’s SubsidiariesParent Ordinary Shares;
(ii) (A) authorize, declare, set aside, make or pay any dividend dividends on or other distribution, payable make any distribution (whether in cash, stockassets, property shares or otherwise, other securities of Parent or any Subsidiary of Parent) with respect to or (B) directly or indirectly redeem, purchase or otherwise acquire, in the case of each of clauses (A) and (B), any of its outstanding shares of capital stock or other equity interests or any 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, or enter into any agreement and arrangement with respect to voting or registration of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans equity interests or any similar Parent plansecurities;
(iii) acquire except for the Parent Ordinary Shares, Parent ADRs and New Parent Equity Awards to be issued pursuant to this Agreement or any Parent Ordinary Shares issuable in the Financing or any Permitted Financing (by merger, consolidation, acquisition of stock or assets or otherwiseas defined below), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose ofof or otherwise encumber, grant, transfer, encumberor otherwise permit to become outstanding, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee disposition or other encumbrance of, of any (A) shares of its beneficial interests, capital stock or of other ownership interest in Parent or any of its Subsidiaries, or (B) securities convertible into or exchangeable into or exercisable for any such shares or ownership interest, or (C) rights, warrants or options to acquire or with respect to any such shares of such beneficial interest, capital stock, ownership interest or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securitiessecurities or take any action to cause to be exercisable any otherwise unexercisable option under any existing share option plan except, other than the issuance in each case, for issuances of Parent Ordinary Shares in respect of (AI) any Parent Shares upon the settlement exercise or conversion of any grants made under any Parent Stock Plan or any similar Parent plan existing securities outstanding on the date of this Agreement, in accordance with their terms on the date of this Agreement (and any dividend equivalent thereon) (including, the exercise of any Parent Options and/or the exercise of any deferred consideration or other “performance securities” (as that term is used for the purposes of ASX Guidance Note 19)), (II) any vesting, exercise, conversion or delivery of shares under Parent RSUs or Parent Options outstanding on the date of this Agreement, in accordance with their terms as of the date of this Agreement of those grants; Agreement, and (BIII) any securities of a Subsidiary of for transactions solely between or among Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to and its wholly owned Subsidiaries);
(viiv) enter into any agreement with respect to the voting effect a recapitalization, reclassification of its capital shares, stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combinereverse stock split or similar transaction or authorize the issuance of any other securities in respect of, subdivide in lieu of, or redeemin substitution for, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viiiv) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon adopt a plan of complete or allow to lapse partial liquidation or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than dissolution with respect to Parent;
(vi) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interests interest in, or a portion of the material assets of, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any material assets of any Subsidiary of Parent) other Person, except for (A) in connection with the purchase of materials, goods and services from suppliers or services provided vendors in the ordinary course of businessbusiness consistent with past practices or (B) acquisitions for amounts that do not exceed five million dollars ($5,000,000) individually or fifteen million dollars ($15,000,000) in the aggregate;
(vii) (A) incur any Indebtedness, (B) sales of obsolete assetsrenew or extend any existing credit or loan arrangements, (C) for sales, leases, licenses enter into any “keep well” or other dispositions agreement to maintain any financial condition of assets with a fair market value not in excess of $300 million in the aggregate, another Person or (D) pursuant to Contracts enter into any agreement or arrangement having the economic effect of any of the foregoing, except, in effect prior to the date case of this Agreement each of clauses (A) through (D), for (1) short-term Indebtedness incurred in the ordinary course of business consistent with past practices, (2) warehouse lines (including any refinancing of any existing warehouse line) and (3) any amounts that have been disclosed to do not exceed twenty-five million dollars ($25,000,000) individually or seventy-five million dollars ($75,000,000) in the Company prior to the date aggregate except for unsecured amounts for which a principal payment would be due within two years of this Agreementincurrence;
(viii) change any of its financial, actuarial, reserving, accounts receivable collection or Tax accounting methods or practices in any respect, expect as required by IFRS or Law;
(ix) enter into take or cause to be taken any new line action that would reasonably be expected to prevent the consummation of business, or fundamentally change any existing line of businessthe Merger; or
(x) agreeauthorize, authorize agree or commit to do take any of the foregoingactions described in clauses (i) through (ix) of this Section 4.02(b).
Appears in 1 contract
Samples: Merger Agreement (Sezzle Inc.)
Covenants of Parent. From Except as permitted by the terms of this Agreement, without the prior written consent of the Company, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except (i) as otherwise expressly required by this Agreement, (ii) as Parent shall not do any of the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the Parent Disclosure Letter, Parent will not following and will shall not permit its Subsidiaries toMerger Sub to do any of the following:
(ia) adopt Except as required by law, waive any stock repurchase rights, accelerate, amend or propose change the period of exercisability of options or restricted stock, or reprise options granted under any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations employee, consultant, director or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation stock plans or by-laws or other applicable governing instruments or (C) the material terms of authorize cash payments in exchange for any security of Parent, Merger Sub or options granted under any of Parent’s Subsidiariessuch plans;
(iib) declareExcept as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to the Company, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(c) Declare, set aside, make aside or pay any dividend dividends on or make any other distribution, payable distributions (whether in cash, stock, property equity securities or otherwise, with property) in respect to of any of its capital stock or repurchase split, combine or reclassify any Parent Shares at a premium; provided thatcapital stock or issue or authorize the issuance of any other securities in respect of, in each case solely to the extent lieu of or in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or substitution for any similar Parent plancapital stock;
(iiid) acquire (by mergerPurchase, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase redeem or otherwise acquire, directly or indirectly, any shares of its capital stock of Parent or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its SubsidiariesMerger Sub, except (other than with respect to equity interests i) repurchases of any Subsidiary of Parent) (A) unvested shares at cost in connection with goods the termination of the employment relationship with any employee pursuant to stock option or services provided purchase agreements in effect on the date hereof (or any such agreements entered into in the ordinary course of businessbusiness consistent with past practice by Parent with employees hired after the date hereof), and (B) sales of obsolete assets, (Cii) for salesthe purpose of funding or providing benefits under any stock option and incentive compensation plans, leasesdirectors plans, licenses and stock purchase and dividend reinvestment plans in accordance with past practice;
(e) Except for the Financing, issue, deliver, sell, authorize, pledge or other dispositions otherwise encumber or propose any of assets the foregoing with a fair market value not in excess respect to any shares of $300 million in the aggregatecapital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (Dwhether payable in shares, cash or otherwise) other than the issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to Contracts in effect prior to the date exercise of this Agreement that have been disclosed to the Company prior to stock options or warrants outstanding as of the date of this Agreement;
(ixf) Cause, permit or submit to a vote of Parent’s stockholders any amendments to the Parent Charter Documents (or similar governing instruments of Merger Sub) other than as provided in Section 6.1(g);
(g) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any new line joint ventures, strategic partnerships or strategic investments;
(h) Sell, lease, license, encumber or otherwise dispose of businessany properties or assets except in the ordinary course of business consistent with past practice, except for the sale, lease, licensing, encumbering or disposition of property or assets which are not material, individually or in the aggregate, to the business of Parent and Merger Sub;
(i) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent.
(j) Adopt or amend employee stock purchase or employee stock option plan, or fundamentally enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable “at will”), pay any special bonus or special remuneration to any director or employee, or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law;
(k) Pay, discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or (ii) waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce the confidentiality or nondisclosure provisions of any agreement to which Parent or Merger Sub is a party or of which Parent or Merger Sub is a beneficiary;
(l) Except in the ordinary course of business consistent with past practice, materially modify, amend or terminate any agreements or waive, delay the exercise of, release or assign any material rights or claims thereunder without providing prior notice to the Company;
(m) Except as required by GAAP, revalue any of its assets or make any change in accounting methods, principles or practices;
(n) Make any existing line Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, individually or in the aggregate, is reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of businessParent or Merger Sub, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes;
(o) Take any action that would prevent the Merger from qualifying as a reorganization under Section 368(a) of the Code; or
(xp) agree, authorize Agree in writing or commit otherwise to do take any of the foregoingactions described in Section 4.2 (a) through Section 4.1(o) above.
Appears in 1 contract
Covenants of Parent. From Except as permitted by the terms of this Agreement, without the prior written consent of Ariston, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except (i) as otherwise expressly required by this Agreement, (ii) as Parent shall not do any of the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the Parent Disclosure Letter, Parent will not following and will shall not permit its Subsidiaries toXxxxxx Merger Sub to do any of the following:
(ia) adopt Except as required by law, waive any stock repurchase rights, accelerate, amend or propose change the period of exercisability of options or restricted stock, or reprise options granted under any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations employee, consultant, director or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation stock plans or by-laws or other applicable governing instruments or (C) the material terms of authorize cash payments in exchange for any security of Parent, Merger Sub or options granted under any of Parent’s Subsidiariessuch plans;
(iib) declareExcept as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to Ariston, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(c) Declare, set aside, make aside or pay any dividend dividends on or make any other distribution, payable distributions (whether in cash, stock, property equity securities or otherwise, with property) in respect to of any of its capital stock or repurchase split, combine or reclassify any Parent Shares at a premium; provided thatcapital stock or issue or authorize the issuance of any other securities in respect of, in each case solely to the extent lieu of or in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or substitution for any similar Parent plancapital stock;
(iiid) acquire (by mergerPurchase, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase redeem or otherwise acquire, directly or indirectly, any shares of its capital stock of Parent or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its SubsidiariesXxxxxx Merger Sub, except (other than with respect to equity interests i) repurchases of any Subsidiary of Parent) (A) unvested shares at cost in connection with goods the termination of the employment relationship with any employee pursuant to stock option or services provided purchase agreements in effect on the date hereof (or any such agreements entered into in the ordinary course of businessbusiness consistent with past practice by Parent with employees hired after the date hereof), and (B) sales of obsolete assets, (Cii) for salesthe purpose of funding or providing benefits under any stock option and incentive compensation plans, leasesdirectors plans, licenses and stock purchase and dividend reinvestment plans in accordance with past practice;
(e) Issue, deliver, sell, authorize, pledge or other dispositions otherwise encumber or propose any of assets the foregoing with a fair market value not in excess respect to any shares of $300 million in the aggregatecapital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (Dwhether payable in shares, cash or otherwise) other than the issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to Contracts in effect prior to the date exercise of this Agreement that have been disclosed to the Company prior to stock options or warrants outstanding as of the date of this Agreement;
(ixf) Cause, permit or submit to a vote of Parent's stockholders any amendments to the Parent Charter Documents (or similar governing instruments of Xxxxxx Merger Sub) other than as provided in Section 6.1(g);
(g) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any new line joint ventures, strategic partnerships or strategic investments;
(h) Sell, lease, license, encumber or otherwise dispose of businessany properties or assets except in the ordinary course of business consistent with past practice, except for the sale, lease, licensing, encumbering or disposition of property or assets which are not material, individually or in the aggregate, to the business of Parent and Xxxxxx Merger Sub;
(i) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent;
(j) Adopt or amend employee stock purchase or employee stock option plan, or fundamentally enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable “at will”), pay any special bonus or special remuneration to any director or employee, or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law;
(i) Pay, discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or (ii) waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce the confidentiality or nondisclosure provisions of any agreement to which Parent or Xxxxxx Merger Sub is a party or of which Parent or Xxxxxx Merger Sub is a beneficiary;
(l) Except in the ordinary course of business consistent with past practice, materially modify, amend or terminate any agreements or waive, delay the exercise of, release or assign any material rights or claims thereunder without providing prior notice to Parent;
(m) Except as required by GAAP, revalue any of its assets or make any change in accounting methods, principles or practices;
(n) Make any existing line Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, individually or in the aggregate, is reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of businessParent or Xxxxxx Merger Sub, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes;
(o) Take any action that would prevent the Merger from qualifying as a reorganization under Section 368(a) of the Code or an exchange qualifying under Section 351 of the Code; or
(xp) agree, authorize Agree in writing or commit otherwise to do take any of the foregoingactions described in Section 4.2 (a) through (o) above.
Appears in 1 contract
Covenants of Parent. From Except as permitted by the terms of this Agreement, without the prior written consent of FlexSCAN, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except (i) as otherwise expressly required by this Agreement, (ii) as Parent shall not do any of the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the Parent Disclosure Letter, Parent will not following and will shall not permit its Subsidiaries toto do any of the following:
(ia) adopt Except as required by law, waive any stock repurchase rights, accelerate, amend or propose change the period of exercisability of options or restricted stock, or reprise options granted under any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations employee, consultant, director or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation stock plans or by-laws or other applicable governing instruments or (C) the material terms of authorize cash payments in exchange for any security of Parent, Merger Sub or options granted under any of Parent’s Subsidiaries;
such plans; (iib) declareExcept as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to FlexSCAN, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof; (c) Declare, set aside, make aside or pay any dividend dividends on or make any other distribution, payable distributions (whether in cash, stock, property equity securities or otherwise, with property) in respect to of any of its capital stock or repurchase split, combine or reclassify any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of capital stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, issue or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance issuance of any other securities in respect of, any shares in lieu of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable in substitution for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (Bd) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (CExcept as provided under Section 6.2(f) any grants under the Parent Stock Planbelow, or any similar Parent planpurchase, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its Subsidiaries, except (i) repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof (or any such agreements entered into in the ordinary course of business consistent with past practice by Parent with employees hired after the date hereof), (ii) for the purpose of funding or providing benefits under any stock option and incentive compensation plans, directors plans, and stock purchase and dividend reinvestment plans in accordance with past practice; (e) Issue, deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing with respect to any shares of capital stock or any securities convertible into shares of capital stock, or exchangeable into subscriptions, rights, warrants or exercisable for options to acquire any shares of its capital stock or any securities convertible into shares of capital stock;, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (whether payable in shares, cash or otherwise) other than the issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to the exercise of stock options or warrants outstanding as of the date of this Agreement.
(viiif) transferCause, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon permit or allow submit to lapse a vote of Parent's stockholders any amendments to the Parent Charter Documents (or expire or otherwise dispose of any of its material assets, product lines or businesses or those similar governing instruments of any of its Subsidiaries); (g) Acquire or agree to acquire by merging or consolidating with, including or by purchasing any equity interests interest in or a portion of the assets of, or by any of its Subsidiariesother manner, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods business or services provided in the ordinary course of businessany corporation, (B) sales of obsolete assetspartnership, (C) for sales, leases, licenses association or other dispositions of assets with a fair market value not in excess of $300 million in the aggregatebusiness organization or division thereof, or (D) pursuant otherwise acquire or agree to Contracts in effect prior to the date of this Agreement that have been disclosed to the Company prior to the date of this Agreement;
(ix) enter into any new line of businessjoint ventures, strategic partnerships or fundamentally change any existing line of business; or
(x) agree, authorize or commit to do any of the foregoing.strategic investments;
Appears in 1 contract
Covenants of Parent. From the date of this Agreement until the Effective Time, except (i) as otherwise expressly required by this Agreement, (ii) as unless the Company may approve shall otherwise consent in writing (such approval which consent shall not to be unreasonably withheld, conditioned withheld or delayed) or (iii) except as set forth in Section 5.2 of the Parent Disclosure LetterLetter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent will not shall, and will not permit its shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date hereof until the Effective Time, without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed), Parent shall not directly or indirectly:
(ia) adopt amend or propose modify any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security Constituent Documents of Parent, Merger Sub or any of Parent’s Subsidiaries;
(iib) (i) declare, set aside, make or pay any dividend or other distribution, payable distribution (whether in cash, stock, property or otherwise, with respect to any of its capital stock or repurchase any Parent Shares at a premium; provided that, property) in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares Securities of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securitiesParent, other than the issuance quarterly dividends consistent with past practice or (ii) repurchase, redeem or otherwise acquire any Securities of (A) Parent, other than acquisitions of Securities pursuant to any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent benefit plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the date of this Agreement that have been disclosed to the Company prior to on the date of this Agreement;
(ixc) enter into any new line of businessacquire by merging or consolidating with, or fundamentally change by share exchange, or by purchase or by any existing line other manner, any Person or division, business or equity interest of businessany Person, other than acquisitions that would not reasonably be expected to prevent or delay or impede the consummation of the transactions contemplated by this Agreement;
(d) adopt or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parent; or
(xe) agreeauthorize, authorize resolve, agree or commit to do any of the foregoing.
Appears in 1 contract
Covenants of Parent. From Except as permitted by the terms of this Agreement, without the prior written consent of the Company, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except (i) as otherwise expressly required by this Agreement, (ii) as Parent shall not do any of the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the Parent Disclosure Letter, Parent will not following and will shall not permit its Subsidiaries toMerger Sub to do any of the following:
(ia) adopt Except as required by law, waive any stock repurchase rights, accelerate, amend or propose change the period of exercisability of options or restricted stock, or reprice options granted under any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations employee, consultant, director or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation stock plans or by-laws or other applicable governing instruments or (C) the material terms of authorize cash payments in exchange for any security of Parent, Merger Sub or options granted under any of Parent’s Subsidiariessuch plans;
(iib) Except as required by applicable law, grant any severance or termination pay to any officer or employee or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof; declare, set aside, make aside or pay any dividend dividends on or make any other distribution, payable distributions (whether in cash, stock, property equity securities or otherwise, with property) in respect to of any of its capital stock or repurchase split, combine or reclassify any Parent Shares at a premium; provided thatcapital stock or issue or authorize the issuance of any other securities in respect of, in each case solely to the extent lieu of or in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or substitution for any similar Parent plancapital stock;
(iiic) acquire (by mergerPurchase, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase redeem or otherwise acquire, directly or indirectly, any shares of its capital stock of Parent or membership interest of Merger Sub; except for the Qualified Financing, issue, deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing with respect to any shares of capital stock (in the case of Parent) or membership interests (in the case of Merger Sub) or any securities convertible into or exchangeable for shares of capital stock or securities convertible membership interests, as the case may be, or exchangeable into subscriptions, rights, warrants or exercisable for options to acquire any shares of its capital stockstock membership interests, as the case may be, or any securities convertible into shares of capital stock or membership interests, as the case may be, or enter into other agreements or commitments of any character obligating it to issue any such shares of capital stock or membership interests, as the case may be, or convertible securities, or any equity-based awards (whether payable in equity securities, cash or otherwise);
(viiid) transferEnter into any agreement with any placement agents in connection with the Qualified Financing that provide for compensation, sellrights, fees or the issuance of warrant or equity, except in accordance with the terms contemplated on Schedule 4.2(d);
(e) Cause, permit or submit to a vote of (i) Parent’s stockholders any amendments to the Parent Governance Documents (or similar governing instruments of Merger Sub) or (ii) to Merger Sub’s member any amendments to the Merger Sub Governance Documents;
(f) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any joint ventures, strategic partnerships or strategic investments;
(g) Sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire encumber or otherwise dispose of any of its material assets, product lines properties or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, assets except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of businessbusiness consistent with past practice, (B) sales except for the sale, lease, licensing, encumbering or disposition of obsolete assetsproperty or assets which are not material, (C) for sales, leases, licenses individually or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the date business of this Agreement that have been disclosed Parent and Merger Sub;
(h) Incur any indebtedness for borrowed money, other than in the ordinary course of business and consistent with past practice, subject to the Company last sentence of Section 3.5(b), or guarantee any indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent.
(i) Adopt or amend employee stock purchase or employee stock option plan or other type of equity incentive compensation plan or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable “at will”), pay any special bonus or special remuneration to any director or employee, or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law;
(j) Pay, discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce the confidentiality or nondisclosure provisions of any agreement to which Parent or Merger Sub is a party or of which Parent or Merger Sub is a beneficiary;
(ixk) enter into Except in the ordinary course of business consistent with past practice, materially modify, amend or terminate any new line agreements or waive, delay the exercise of, release or assign any material rights or claims thereunder without providing prior notice to the Company;
(l) Except as required by GAAP, revalue any of businessits assets or make any change in accounting methods, principles or fundamentally practices;
(m) Make any Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, individually or in the aggregate, is reasonably likely to adversely affect in any existing line material respect the Tax liability or Tax attributes of businessParent or Merger Sub, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes;
(n) Take any action that would prevent the Merger from qualifying as a reorganization under Section 368(a)(1)(A) of the Code and Treas. Reg. Section 1.368-2(b) promulgated thereunder; or
(xo) agree, authorize Agree in writing or commit otherwise to do take any of the foregoingactions described in Section 4.2 (a) through Section 4.2(o) above.
Appears in 1 contract
Covenants of Parent. From Except as permitted by the terms of this Agreement, without the prior written consent of Lev, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except (i) as otherwise expressly required by this Agreement, (ii) as Parent shall not do any of the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the Parent Disclosure Letter, Parent will not following and will shall not permit its Subsidiaries toto do any of the following:
(ia) adopt Except as required by law or propose pursuant to the terms of the Parent Option Plan in effect as of the date hereof, waive any stock repurchase rights, accelerate, amend or change in (A) Parent’s Third Amended Articles the period of Incorporation exercisability of options or Regulations restricted stock, or reprise options granted under any employee, consultant, director or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation stock plans or by-laws or other applicable governing instruments or (C) the material terms of authorize cash payments in exchange for any security of Parent, Merger Sub or options granted under any of Parent’s Subsidiariessuch plans;
(iib) declareExcept as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to Lev, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(c) Declare, set aside, make aside or pay any dividend dividends on or make any other distribution, payable distributions (whether in cash, stock, property equity securities or otherwise, with property) in respect to of any of its capital stock or repurchase split, combine or reclassify any Parent Shares at a premium; provided thatcapital stock or issue or authorize the issuance of any other securities in respect of, in each case solely to the extent lieu of or in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or substitution for any similar Parent plancapital stock;
(iiid) acquire (by mergerExcept as provided under Section 6.2(f) below, consolidationpurchase, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its Subsidiaries, except (i) repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof (or any such agreements entered into in the ordinary course of business consistent with past practice by Parent with employees hired after the date hereof), (ii) for the purpose of funding or providing benefits under any stock option and incentive compensation plans, directors plans, and stock purchase and dividend reinvestment plans in accordance with past practice; -------------------------------------------------------------------------------- 28
(e) Issue, deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing with respect to any shares of capital stock or any securities convertible into shares of capital stock, or exchangeable into subscriptions, rights, warrants or exercisable for options to acquire any shares of its capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (whether payable in shares, cash or otherwise) other than the issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to the exercise of stock options or warrants outstanding as of the date of this Agreement.
(f) Cause, permit or submit to a vote of Parent's stockholders any amendments to the Parent Charter Documents (or similar governing instruments of any of its Subsidiaries);
(viiig) transferAcquire or agree to acquire by merging or consolidating with, sellor by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any joint ventures, strategic partnerships or strategic investments;
(h) Sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire encumber or otherwise dispose of any of its material assets, product lines properties or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, assets except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of businessbusiness consistent with past practice, except for the sale, lease, licensing, encumbering or disposition (Bother than through licensing permitted by clause (c)) sales of obsolete assetsproperty or assets which are not material, (C) for sales, leases, licenses individually or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the business of Parent and its Subsidiaries;
(i) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent, enter into any "keep well" or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing other than in connection with the financing of working capital consistent with past practice;
(j) Adopt or amend employee stock purchase or employee stock option plan; or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable "at will"); pay any special bonus or special remuneration to any director or employee; or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law and except for (i) salary increases in the ordinary course of business consistent with past practice for non-officer employees, (ii) salary increases for officers in an amount not exceeding 5% of such officer's salary on the date of this Agreement that have been disclosed to the Company hereof and (iii) as set forth on Schedule 4.2(j); -------------------------------------------------------------------------------- 29
(k) Pay, discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or (ii) waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce the confidentiality or nondisclosure provisions of any agreement to which Parent or any of its Subsidiaries is a party or of which Parent or any of its Subsidiaries is a beneficiary, in the case of both (i) and (ii) of this Section 4.1(l);
(ixl) enter into Except in the ordinary course of business consistent with past practice, and except as provided under Section 6.2(f) below, materially modify, amend or terminate any new line Parent Contracts disclosed in Schedule 3.15 of businessthe Parent Schedule or waive, delay the exercise of, release or fundamentally assign any material rights or claims thereunder without providing prior notice to Parent;
(m) Except as required by GAAP, revalue any of its assets or make any change in accounting methods, principles or practices;
(n) Make any existing line Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, individually or in the aggregate, is reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of businessParent or any of its Subsidiaries, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes; or
(xo) agree, authorize Agree in writing or commit otherwise to do take any of the foregoingactions described in Section 4.1 (a) through (o) above.
Appears in 1 contract
Covenants of Parent. From Except as expressly contemplated by this Agreement, from the date execution of this Agreement until the Effective Timeearlier of the Closing and the termination of this Agreement in accordance with its terms, except unless otherwise consented to in writing by Remedy Opco (which consent shall not be unreasonably withheld, delayed or conditioned): (a) Parent shall, and shall cause its Subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course and use commercially reasonable efforts to preserve intact their present business organizations, maintain their rights, franchises, licenses and other authorizations issued by Governmental Entities and preserve their relationships with employees, customers, suppliers and other Persons with whom they have business dealings and (b) Parent shall not, nor shall it permit any of its Subsidiaries to, (i) as otherwise expressly required by this Agreemententer into any new material line of business, (ii) as the Company may approve in writing (such approval not incur or commit to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the Parent Disclosure Letter, Parent will not and will not permit its Subsidiaries to:
(i) adopt or propose any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security of Parent, Merger Sub capital expenditures or any of Parent’s Subsidiaries;
(ii) declare, set aside, make obligations or pay any dividend or other distribution, payable liabilities in cash, stock, property or otherwise, with respect to any of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, connection therewith other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan capital expenditures and obligations or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent liabilities incurred or committed to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (iii) enter into or terminate any material Contract or make any change to any existing material Contract, except in the ordinary course of business, (iv) make, declare or pay any dividend or other distribution upon or in respect of any Equity Interest of Parent (which, for the avoidance of doubt, shall not limit its Subsidiaries from making such dividends or distributions to Parent or any of its other Subsidiaries), other than distributions made pursuant to Section 4.4 (Tax Distributions) of the Existing Parent LLCA in an amount not to exceed $10,000,000, (v) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any material indebtedness for borrowed money, (vi) directly or indirectly, through merger, consolidation or otherwise, acquire any capital stock or other equity interest in, or all or any substantial portion of the assets of, any Person, (vii) merge or consolidate with any Person, (viii) (A) make any payment or distribution to or for the benefit of any NM Person, (B) sales give or provide anything of obsolete assetsvalue to or for the benefit of any NM Person, or (C) for sales, leases, licenses assume or other dispositions acquire any Liability of assets with a fair market value not any NM Person (in excess each case excluding Parent and its Subsidiaries from the definition of $300 million in the aggregateNM Person), or (D) pursuant to Contracts in effect prior to the date of this Agreement that have been disclosed to the Company prior to the date of this Agreement;
(ix) enter into any new line of businessagree to, or fundamentally change make any existing line of business; or
(x) agreecommitment to, authorize take, or commit to do authorize, any of the foregoing.
Appears in 1 contract
Covenants of Parent. From During the period from the date of this Agreement and continuing until the Effective Time, except (i) as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, Parent and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. Without limiting the generality of the foregoing, and except as previously disclosed by Parent to the Company in writing or as otherwise expressly required contemplated by this Agreement, (ii) as the Company may approve Agreement or consented to in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in by the Parent Disclosure LetterCompany, Parent will not shall not, and will shall not permit any of its Subsidiaries to:
(ia) adopt declare or propose pay any change dividends on, or make other distributions in (A) Parent’s Third Amended Articles respect of, any shares of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security of Parent, Merger Sub or any of Parent’s SubsidiariesParent Stock;
(iib) declare, except as set aside, make or pay any dividend or other distribution, payable forth in cash, stock, property or otherwise, with respect to any of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its SubsidiariesSchedule 5.3, (xi) repurchase for the redemption of certain convertible debentures issued to Thomxx Xxxxxxxxx & Xo., Ltd. by Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practicethe Letter Agreement dated April 26, 1999, and redeem or otherwise acquire any shares of Parent Stock, or any securities convertible into or exercisable for any shares of Parent Stock, (yii) Parent may give effect to dividend equivalent rights with respect to grants under the split, combine or reclassify any shares of Parent Stock Plans or issue or authorize or propose the issuance of any similar other securities in respect of, in lieu of or in substitution for shares of Parent plan;
Stock, or (iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, deliver or sell, pledge, dispose of, grant, transfer, encumber, or authorize or propose the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee delivery or encumbrance sale of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stockfor, or any optionsrights, warrants or other rights options to acquire, any such shares;
(c) amend its Articles of Incorporation or Bylaws;
(d) make any kind to acquire any shares capital expenditures in excess of such capital stock or such convertible or exchangeable securities, $50,000 other than the issuance of (A) any Parent Shares upon the settlement of any grants those which are made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financingare necessary to maintain existing assets in good repair;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the date of this Agreement that have been disclosed to the Company prior to the date of this Agreement;
(ixe) enter into any new line of business, except as contemplated hereby or fundamentally change any existing line of business; orin the Form 10-K;
(xf) agreeacquire or agree to acquire, authorize by merging or commit consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets, which would be material, individually or in the aggregate, to do Parent;
(g) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue, or in any of the foregoing.conditions to the Merger not being satisfied;
(h) make a material change in its methods of accounting in effect at December 31, 1998, except as required by changes in GAAP or as concurred with by Parent's independent auditors;
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Merger (Futurelink Distribution Corp)
Covenants of Parent. From Except as permitted by the terms of this Agreement, without the prior written consent of Chelsea, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except (i) as otherwise expressly required by this Agreement, (ii) as Parent shall not do any of the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the Parent Disclosure Letter, Parent will not following and will shall not permit its Subsidiaries toChelsea Merger Sub to do any of the following:
(ia) adopt Except as required by law or propose pursuant to the terms of the Parent Option Plan in effect as of the date hereof, waive any stock repurchase rights, accelerate, amend or change in (A) Parent’s Third Amended Articles the period of Incorporation exercisability of options or Regulations restricted stock, or reprise options granted under any employee, consultant, director or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation stock plans or by-laws or other applicable governing instruments or (C) the material terms of authorize cash payments in exchange for any security of Parent, Merger Sub or options granted under any of Parent’s Subsidiariessuch plans;
(iib) declareExcept as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to Chelsea, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(c) Declare, set aside, make aside or pay any dividend dividends on or make any other distribution, payable distributions (whether in cash, stock, property equity securities or otherwise, with property) in respect to of any of its capital stock or repurchase split, combine or reclassify any Parent Shares at a premium; provided thatcapital stock or issue or authorize the issuance of any other securities in respect of, in each case solely to the extent lieu of or in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or substitution for any similar Parent plancapital stock;
(iiid) acquire (by mergerPurchase, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase redeem or otherwise acquire, directly or indirectly, any shares of its capital stock of Parent or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its SubsidiariesChelsea Merger Sub, except (other than with respect to equity interests i) repurchases of any Subsidiary of Parent) (A) unvested shares at cost in connection with goods the termination of the employment relationship with any employee pursuant to stock option or services provided purchase agreements in effect on the date hereof (or any such agreements entered into in the ordinary course of businessbusiness consistent with past practice by Parent with employees hired after the date hereof), and (B) sales of obsolete assets, (Cii) for salesthe purpose of funding or providing benefits under any stock option and incentive compensation plans, leasesdirectors plans, licenses and stock purchase and dividend reinvestment plans in accordance with past practice;
(e) Issue, deliver, sell, authorize, pledge or other dispositions otherwise encumber or propose any of assets the foregoing with a fair market value not in excess respect to any shares of $300 million in the aggregatecapital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (Dwhether payable in shares, cash or otherwise) other than the issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to Contracts in effect prior to the date exercise of this Agreement that have been disclosed to the Company prior to stock options or warrants outstanding as of the date of this Agreement;
(ixf) Cause, permit or submit to a vote of Parent’s stockholders any amendments to the Parent Charter Documents (or similar governing instruments of Chelsea Merger Sub);
(g) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any new line joint ventures, strategic partnerships or strategic investments;
(h) Sell, lease, license, encumber or otherwise dispose of businessany properties or assets except in the ordinary course of business consistent with past practice, except for the sale, lease, licensing, encumbering or disposition of property or assets which are not material, individually or in the aggregate, to the business of Parent and Chelsea Merger Sub;
(i) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing other than in connection with the financing of working capital consistent with past practice;
(j) Adopt or amend employee stock purchase or employee stock option plan, or fundamentally enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable “at will”), pay any special bonus or special remuneration to any director or employee, or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law;
(k) Pay, discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or (ii) waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce the confidentiality or nondisclosure provisions of any agreement to which Parent or Chelsea Merger Sub is a party or of which Parent or Chelsea Merger Sub is a beneficiary, in the case of both (i) and (ii) of this Section 4.1(l);
(l) Except in the ordinary course of business consistent with past practice, materially modify, amend or terminate any Parent Contracts or waive, delay the exercise of, release or assign any material rights or claims thereunder without providing prior notice to Parent;
(m) Except as required by GAAP, revalue any of its assets or make any change in accounting methods, principles or practices;
(n) Make any existing line Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, individually or in the aggregate, is reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of businessParent or Chelsea Merger Sub, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes; or
(xo) agree, authorize Take any action that would prevent the Merger from qualifying as a reorganization under Section 368(a) of the Code.
(p) Agree in writing or commit otherwise to do take any of the foregoingactions described in Section 4.2 (a) through (o) above.
Appears in 1 contract
Covenants of Parent. From Except as expressly provided or permitted herein or as set forth in Section 4.2 of the date Parent Disclosure Schedule, during the Pre-Closing Period Parent shall not, and shall not permit any of this Agreement until its Subsidiaries or Affiliates to, directly or indirectly, do any of the Effective Timefollowing without the prior written consent the Company (which consent shall not be unreasonably withheld, conditioned or delayed):
(a) (i) declare, set aside or pay any dividends in excess of $0.16 per quarter on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stock, except for dividends by any of the Parent Subsidiaries to Parent or any of the other Parent Subsidiaries or any regularly scheduled quarterly dividends the timing and amount of which are in the ordinary course of business consistent with past practice or (ii) split, combine or reclassify any of its capital stock or 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 any of its other securities;
(b) amend its Certificate of Incorporation, as amended, or Bylaws, as amended, or the certificate of incorporation, bylaws or other comparable charter, formation or organizational documents of Parent Subsidiaries;
(c) other than the Financing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of any Person (other than any wholly-owned Parent Subsidiary in the ordinary course of business consistent with past practice) for borrowed money or issue or sell options, warrants, calls or other rights to acquire any indebtedness for borrowed money of Parent or any of its Subsidiaries, or take any action that would result in any amendment, modification or change of any term of any indebtedness for borrowed money of Parent or any of its Subsidiaries, except (i) as otherwise expressly required by this Agreementborrowings under Parent’s existing credit facilities and loans between Parent and its wholly-owned Subsidiaries or between Parent’s wholly-owned Subsidiaries, and (ii) Contracts entered into for purposes of hedging against changes in commodities prices or Contracts entered into for purposes of hedging against changes in foreign currency exchange rates or interest rates;
(d) implement or adopt any material change in financial accounting policies, practices or methods, other than as may be required by Law, GAAP or regulatory guidelines;
(e) acquire or agree to acquire by merging, or consolidating with, or by purchasing any interest in or assets or securities of, or by any other manner, any business or any Person or any division or business thereof, if such acquisition or agreement (i) is for an amount in excess of $100,000,000 or (ii) could reasonably be expected to present a material risk of delaying the Company may approve Effective Time, making it materially more difficult to obtain, or materially delay obtaining, any Consents or approvals of any Governmental Authority necessary to consummate the Merger, or present a material risk of any Governmental Authority entering an Order prohibiting the consummation of the Merger or materially increasing the risk of not being able to remove any such Order on appeal or otherwise;
(f) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions. If Parent or any of its Subsidiaries desires to take an action which would be prohibited pursuant to the foregoing clauses (a)-(f) without the written consent of the Company, prior to taking such approval action, Parent may request such written consent (which consent shall not to be unreasonably withheld, conditioned or delayed) by sending an electronic mail or (iii) as set forth in facsimile to the representative of the Company listed on Section 4.2 of the Parent Disclosure Letter, Schedule. The Company will either deliver to Parent will not and will not permit its Subsidiaries to:
(i) adopt written consent or propose any change in (A) Parent’s Third Amended Articles of Incorporation a denial notification via electronic mail or Regulations facsimile within two Business Days after the Company receives a written request by Parent pursuant to this Section 4.2. If no such consent or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security of Parent, Merger Sub or any of Parent’s Subsidiaries;
(ii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any denial is received by Parent within three Business Days of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case request in accordance with Parent’s past practicethis Section 4.2, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the date of this Agreement that have been disclosed to the Company prior will be deemed to the date of this Agreement;
(ixhave granted its consent to such action(s) enter into any new line of business, or fundamentally change any existing line of business; or
(x) agree, authorize or commit to do any of the foregoingrequested by Parent.
Appears in 1 contract
Samples: Merger Agreement (Diamond Foods Inc)
Covenants of Parent. (a) From and after the date of this Agreement until the earlier of the Effective TimeTime or the valid termination of this Agreement in accordance with its terms, and except as (i) as otherwise expressly contemplated or required by this Agreement, (ii) as set forth in Section 4.2 of the Company may approve in writing Parent Disclosure Letter, (such approval iii) required by applicable Law, or (iv) with the Company’s prior written consent (which consent is not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the ), each of Parent Disclosure Letterand Merger Sub shall not, Parent will not and will not permit shall cause its Subsidiaries not to:
(i) adopt amend any Organizational Documents of Parent or propose waive any change provision thereunder (whether by merger, consolidation or otherwise) in (A) Parent’s Third Amended Articles a manner that would materially and adversely affect the rights of Incorporation the holders of the Parent Common Stock or Regulations would prevent, materially delay or other applicable governing instruments, (B) Merger Sub’s certificate materially impair the ability of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security of Parent, Parent and Merger Sub to perform their obligations under this Agreement or any of Parent’s Subsidiariesto consummate the transactions contemplated hereby;
(ii) split, combine, subdivide or reclassify any shares of capital stock or other equity interests of Parent;
(iii) declare, set aside, make aside or pay any dividend on or make any other distribution, payable distributions (whether in cash, stock, property or otherwise, ) with respect to any shares of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent or other equity securities or ownership interests in Parent, except for the declaration and its Subsidiariespayment by Parent of dividends on Parent Common Stock pursuant to, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practicewith, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactionsSection 5.9;
(iv) issuerepurchase, sell, pledge, dispose of, grant, transfer, encumber, redeem or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to otherwise acquire any shares of such capital stock or such convertible or exchangeable securitiesof Parent, other than the issuance of except (A) any for acquisitions of shares of Parent Shares upon Common Stock tendered by holders of equity awards under the settlement of any grants made under any Parent Stock Plan or any similar Parent plan Equity Plans in accordance with the terms of the Parent Equity Plan as such awards are in effect on the date of this Agreement in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto or transactions solely between Parent and a wholly owned Subsidiary of Parent or wholly owned Subsidiaries of Parent, (B) acquisitions of shares of capital stock of Parent pursuant to Article IX of Parent’s amended and restated certificate of incorporation and (C) in de minimis amounts;
(v) take any action, or fail to take any action, which would reasonably be expected to cause Parent to fail to qualify as a REIT (provided that in no event shall Parent be required to change its practices, classifications or tax positions as of the date of this Agreement as a result of those grants; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
this clause (v) absent changes in applicable Law), or take any action, or knowingly fail to take any action, which action or failure to act could be reasonably expected to prevent the Merger (Afor the avoidance of doubt, regardless of the option selected between the Forward Merger and the Reverse Merger by Parent pursuant to Section 1.1(a) merge and, in the event of a Forward Merger, regardless of whether Merger Sub is treated for U.S. federal and state income Tax purposes as a disregarded entity, a QRS or consolidate itself or any a TRS) from qualifying as a “reorganization” within the meaning of its Subsidiaries with any other Person or (BSection 368(a) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries)of the Code;
(vi) liquidate (completely or partially), wind up, dissolve, place into administration or receivership, enter into any agreement voluntary arrangement or other compromise with creditors, restructure, recapitalize or effect any other reorganization (including any restructuring, recapitalization or reorganization between or among any of Parent or any of its Subsidiaries), or adopt any plan or resolution, or take any other action providing for any of the foregoing, in each case with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;Parent; or
(vii) reclassifyagree to, splitor make any commitment to, combinetake, subdivide or redeem, purchase or otherwise acquire, directly or indirectlyauthorize, any of the actions prohibited or restricted by this Section 4.2.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit or restrict Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Board of Directors of Parent, upon advice of counsel to Parent, is reasonably necessary for Parent to maintain its capital stock qualification as a REIT under the Code and avoid to the extent possible the incurrence of entity level income or securities convertible or exchangeable into or exercisable excise Tax, in each case for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon period or allow to lapse portion thereof ending on or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the Effective Time (including paying a REIT Dividend).
(c) Parent shall (i) use its reasonable best efforts to obtain the opinion of counsel described in Section 6.3(d), (ii) deliver to Cravath, Swaine & Mxxxx LLP (or other nationally recognized law firm reasonably satisfactory to the Company) an officer’s certificate, dated as of the Closing Date (and, if required, as of the effective date of this Agreement that have been disclosed the Form S-4), signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate (including, in the case of a Reverse Merger, the representations and warranties set forth on Section 3.2(n) of the Parent Disclosure Letter) to enable Cravath, Swaine & Mxxxx LLP (or, if applicable, such other nationally recognized law firm) to render the Company prior to opinion described in Section 6.3(c) on the Closing Date (and, if required, as of the effective date of this Agreement;
the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act) (ixa “Parent Tax Representation Letter”); and (iii) enter into any new line of businessdeliver to Parent’s REIT Counsel an officer’s certificate, or fundamentally change any existing line of business; or
(x) agree, authorize or commit to do any dated as of the foregoingClosing Date (and, if required, as of the effective date of the Form S-4), signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable Parent’s REIT Counsel to render the opinion described in Section 6.3(d) on the Closing Date (and, if required, as of the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act).
Appears in 1 contract
Samples: Merger Agreement (Ventas, Inc.)
Covenants of Parent. (a) From and after the date of this Agreement until the earlier of the Effective TimeTime or the valid termination of this Agreement in accordance with its terms, and except as (i) as otherwise expressly contemplated or required by this Agreement, (ii) as set forth in Section 4.2 of the Company may approve in writing Parent Disclosure Letter, (such approval iii) required by applicable Law, or (iv) with the Company’s prior written consent (which consent is not to be unreasonably withheld, conditioned or delayed) or (iii) as set forth in the ), each of Parent Disclosure Letterand Merger Sub shall not, Parent will not and will not permit shall cause its Subsidiaries not to:
(i) adopt amend any Organizational Documents of Parent or propose waive any change provision thereunder (whether by merger, consolidation or otherwise) in (A) Parent’s Third Amended Articles a manner that would materially and adversely affect the rights of Incorporation the holders of the Parent Common Stock or Regulations would prevent, materially delay or other applicable governing instruments, (B) Merger Sub’s certificate materially impair the ability of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security of Parent, Parent and Merger Sub to perform their obligations under this Agreement or any of Parent’s Subsidiariesto consummate the transactions contemplated hereby;
(ii) split, combine, subdivide or reclassify any shares of capital stock or other equity interests of Parent;
(iii) declare, set aside, make aside or pay any dividend on or make any other distribution, payable distributions (whether in cash, stock, property or otherwise, ) with respect to any shares of its capital stock or repurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent or other equity securities or ownership interests in Parent, except for the declaration and its Subsidiariespayment by Parent of dividends on Parent Common Stock pursuant to, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practicewith, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactionsSection 5.9;
(iv) issuerepurchase, sell, pledge, dispose of, grant, transfer, encumber, redeem or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to otherwise acquire any shares of such capital stock or such convertible or exchangeable securitiesof Parent, other than the issuance of except (A) any for acquisitions of shares of Parent Shares upon Common Stock tendered by holders of equity awards under the settlement of any grants made under any Parent Stock Plan or any similar Parent plan Equity Plans in accordance with the terms of the Parent Equity Plan as such awards are in effect on the date of this Agreement in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto or transactions solely between Parent and a wholly owned Subsidiary of Parent or wholly owned Subsidiaries of Parent, (B) acquisitions of shares of capital stock of Parent pursuant to Article IX of Parent’s amended and restated certificate of incorporation and (C) in
(v) take any action, or fail to take any action, which would reasonably be expected to cause Parent to fail to qualify as a REIT (provided that in no event shall Parent be required to change its practices, classifications or tax positions as of the date of this Agreement of those grants; (B) any securities of as a Subsidiary of Parent to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock Plan, or any similar Parent plan, or in the ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to Contracts in effect prior to the date result of this Agreement that have been disclosed to the Company prior to the date of this Agreement;
(ix) enter into any new line of business, or fundamentally change any existing line of business; or
(x) agree, authorize or commit to do any of the foregoing.clause
Appears in 1 contract
Samples: Merger Agreement
