Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4), each of the Company, the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of Arrangement, including using commercially reasonable efforts to: (a) satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement; (b) oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and (c) not take any action, or refrain from taking any action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation of the Arrangement or the transactions contemplated by this Agreement. (2) The Company covenants and agrees that, other than set out in Section 4.2(1) of the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not: (a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or (b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicable. (3) The Company shall promptly notify Canopy of: (a) any Company Material Adverse Effect; (b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement; (c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or (d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy to the extent permitted by Law). (4) The Purchaser and Canopy shall promptly notify the Company in writing of any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement. (5) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement. (6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement. (7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement. (8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreement.
Appears in 3 contracts
Samples: Arrangement Agreement (Acreage Holdings, Inc.), Arrangement Agreement (Canopy Growth Corp), Arrangement Agreement
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)4.3, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of Arrangement, including using commercially reasonable efforts to:
(a) satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) as soon as practicable following execution of this Agreement, obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are:
(i) necessary to be obtained under the Material Contracts or the Company Lease Documents, as applicable, in connection with the Arrangement or this Agreement; or
(ii) required in order to maintain the Material Contracts or Company Lease Documents, as applicable, in full force and effect following completion of the Arrangement; in each case, on terms reasonably satisfactory to the Purchaser;
(c) at any time following the date of this Agreement and, in any event, not later than as soon as practicable following the exercise or deemed exercise of the Purchaser Call Option, obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are:
(i) necessary to be obtained under the Material Contracts or the Company Lease Documents, as applicable, in connection with the Acquisition; or
(ii) required in order to maintain the Material Contracts or the Company Lease Documents, as applicable, in full force and effect following completion of the Acquisition, in each case, on terms reasonably satisfactory to the Purchaser;
(d) oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement or the Acquisition, as applicable, and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and;
(ce) revise the High Street Operating Agreement as mutually agreed between the Company and the Purchaser in accordance with the principal terms set forth in Exhibit 1 hereto;
(f) revise the USCo2 Constating Documents as mutually agreed between the Company and the Purchaser in accordance with the principal terms set forth in Exhibit 1 hereto;
(g) revise the Tax Receivable Agreement as mutually agreed between the Company and the Purchaser in accordance with the principal terms set forth in Exhibit 2 hereto;
(h) not take taking any action, or refrain from taking any action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the Acquisition, as applicable, or the transactions contemplated by this Agreement; and
(i) at any time following the date of this Agreement and, in any event, not later than following the exercise or deemed exercise of the Purchaser Call Option, satisfy, or cause the satisfaction of, all of the Acquisition Closing Conditions.
(2) The Company covenants and agrees that, other than set out in Section 4.2(1) of the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicable.
(3) The Company shall promptly notify Canopy the Purchaser of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser);
(e) any notice or other communication from any Person indicating that a Permitted Lien held by such Person may or will be exercised;
(f) any notice or other communication from any Governmental Entity regarding the revocation or threatened revocation of any material Regulatory Approval; or
(g) any filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries.
(3) The Company will, in all material respects, conduct itself so as to keep the Purchaser fully informed as to the extent permitted material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by Law)reason of an existing confidentiality obligation owed to a third party for which a waiver could not be obtained. The Company will use commercially reasonable efforts to ensure that all confidentiality obligations owed to third parties following the date hereof include an exception permitting the Company to disclose information to the Purchaser on a confidential basis. The Purchaser covenants and agrees with the Company that any such information disclosed by the Company to the Purchaser will be held and used by the Purchaser according to the terms of the Confidentiality Agreement.
(4) The Purchaser and Canopy shall promptly notify the Company in writing of any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees In the event that the Purchaser, acting reasonably, concludes that it is necessary or desirable to proceed with another form of transaction (such as a formal take-over bid or amalgamation) whereby the Purchaser or its affiliates would effectively acquire all of the Company that prior Shares within approximately the same time periods and on the same economic terms, including without limitation a share exchange ratio being no less than the Exchange Ratio, and other terms and conditions (including tax treatment) and having consequences to the exchange Company and its securityholders, including the High Street Holders and the USCo2 Class B Holders, which are substantially equivalent to or better than those contemplated by the Arrangement (an “Alternative Transaction”), the Company agrees to support the completion of such Alternative Transaction in the same manner as the Arrangement and shall otherwise fulfill its covenants contained in this Agreement in respect of such Alternative Transaction. In particular but without limitation, the Company agrees that it will negotiate in good faith as to the “initial deposit period” in respect of any such Alternative Transaction, which shall be 35 days unless a longer period is requested by the Purchaser. In the event of any proposed Alternative Transaction, any reference in this Agreement to the Arrangement or Plan of Arrangement shall refer to the Alternative Transaction to the extent applicable, all Canopy Shares held by CBG terms, covenants, representations and Greenstar into warranties of this Agreement shall be and shall be deemed to have been made in the Exchangeable Canopy Shares, without the prior written consent context of the Company, Alternative Transaction and all references to the Acquisition Effective Time herein shall refer to the date of closing of the transactions contemplated by the Alternative Transaction (as such consent not date may be extended from time to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreementtime).
(6) Canopy covenants and agrees with the So long as any Company that prior Shareholder remains subject to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent a “gain recognition agreement” pursuant to Section 367 of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate U.S. Tax Code and the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayedapplicable Treasury Regulations thereunder, the Purchaser and its affiliates will use commercially reasonable efforts to not knowingly take any action which would trigger any gain recognition by any such Company Shareholder, provided that such actions will not amend, modify, supplement, restate materially impact the business or terminate activities of the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior Purchaser. Notwithstanding anything herein to the Effective Timecontrary, without this provision shall survive the prior written consent of Acquisition by the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this AgreementPurchaser.
Appears in 2 contracts
Samples: Arrangement Agreement (Canopy Growth Corp), Arrangement Agreement (Acreage Holdings, Inc.)
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)4.4, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of ArrangementAgreement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) using commercially reasonable efforts to obtain, as soon as practicable following execution of this Agreement, and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained under the Material Contracts of the Parties in connection with the Arrangement or this Agreement, (ii) required in order to maintain the Material Contracts of the Parties in full force and effect following completion of the Arrangement or (iii) otherwise necessary or desirable in connection with the Arrangement or this Agreement, in each case, on terms that are reasonably satisfactory to the Purchaser and provided that the Company may not make any payment to obtain any third party consent (including any consent under any Material Contract) without the consent of the Purchaser, acting reasonably;
(c) using commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and
(cd) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants Purchaser shall use its commercially reasonable efforts to obtain and agrees that, other than set out maintain in Section 4.2(1) of force the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicableStock Exchange Approval.
(3) The Purchaser shall on or before the Effective Date reserve a sufficient number of Consideration Shares to be issued upon completion of the Arrangement and Purchaser Shares for issuance upon the exercise of Replacement Options, Replacement RSUs, Replacement PSUs, Company Convertible Notes and Company Warrants from time to time.
(4) The Company shall promptly notify Canopy the Purchaser of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or, and such relationship is material to the Company and its Subsidiaries taken as a whole;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser);
(e) the occurrence of any default, event of default, acceleration or enforcement, in each case, under or in connection with any material debt of the Company or any of its Subsidiaries, and the Company shall provide promptly to the extent permitted by Law)Purchaser copies of all notices and correspondence in connection with the foregoing; or
(f) any material filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries.
(45) The Purchaser and Canopy shall promptly notify the Company in writing of of:
(a) any Purchaser Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.;
(5c) Canopy covenants and agrees any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company that prior Purchaser or any of its Subsidiaries as a result of this Agreement or the Arrangement, and such relationship is material to the exchange of all Canopy Shares held by CBG Purchaser and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.its Subsidiaries taken as a whole;
(6d) Canopy covenants any notice or other communication from any Governmental Entity in connection with this Agreement (and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake contemporaneously provide a copy of any further mergersuch written notice or communication to the Company);
(e) the occurrence of any default, amalgamationevent of default, statutory arrangementacceleration or enforcement, share exchangein each case, consolidation, business combination, recapitalization, sale under or other disposition of the assets in connection with any material debt of the Purchaser or any of its Subsidiaries Subsidiaries, and the Purchaser shall provide promptly to the Company copies of all notices and correspondence in a single transaction connection with the foregoing; or
(f) any material filing, actions, suits, claims, investigations or a series proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Purchaser or any of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreementits Subsidiaries.
Appears in 2 contracts
Samples: Arrangement Agreement (Cresco Labs Inc.), Arrangement Agreement (Columbia Care Inc.)
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 the terms and Section 4.4(4)conditions of this Agreement, each of the CompanyCompany and the Purchaser, the Purchaser and Canopy shall each (and each shall cause its respective affiliates Subsidiaries to) , perform all obligations required to be performed by such Party or any of its Subsidiaries under this Agreement, and use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law Laws to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and Arrangement and, without limiting the Plan generality of Arrangementthe foregoing, including using commercially reasonable efforts the Parties shall and, where appropriate, shall cause each of its Subsidiaries to:
(a) use its commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement Agreement, including the steps contemplated in the MIPA, and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) use its commercially reasonable efforts to obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary or advisable under its Material Contracts in connection with the Arrangement or (ii) required in order to maintain its Material Contracts in full force and effect following completion of the Arrangement (except as may be otherwise contemplated in the MIPA), in each case, on terms that are reasonably satisfactory to the other Party, acting reasonably, and without paying, and without committing the other Party to pay, any consideration or incur any liability or obligation without the prior written consent of the other Party, acting reasonably;
(c) use its commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and use its commercially reasonable efforts to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and;
(cd) carry out the terms of the Interim Order and the Final Order applicable to it and comply promptly with all requirements imposed by Law on it or its Subsidiaries with respect to this Agreement or the Arrangement;
(e) not take any action, or refrain from taking any commercially reasonable action, or permitting permit any action to be taken or not taken, which is inconsistent with this Agreement or which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by Arrangement; and
(f) comply with CSE requirements relevant to this Agreement.
(2) The Company covenants and agrees that, other than set out in Section 4.2(1) Purchaser shall on or before the Effective Date reserve a sufficient number of Consideration Shares to be issued upon completion of the Company Disclosure Letter, during Arrangement and the period Purchaser Shares to be issued upon exercise from the date of this Agreement until the earlier time to time of the Effective Time Replacement Options and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicableReplacement Warrants.
(3) The Purchaser shall apply for and use commercially reasonable efforts to obtain written approvals from the CSE, in connection with the listing of the Consideration Shares to be issued in connection with the Arrangement and the Purchaser Shares to be issued upon the exercise from time to time of the Replacement Options and Replacement Warrants, subject only to the satisfaction of customary conditions required by the CSE.
(4) The Company will, in all material respects, conduct itself so as to keep the Purchaser fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of the Company Business, provided that such disclosure is not prohibited by applicable Law or otherwise prohibited by reason of confidentiality obligation owed to a third party for which a waiver could not be obtained.
(5) Each of the Parties shall promptly promptly, and in any event within two (2) Business Days of each of the following, notify Canopy the other Party of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging (i) that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
, or (cii) any notice or other communication from any Person to the effect that such Person is terminating or may terminate or is otherwise materially adversely modifying or may materially adversely modify its relationship with the Company or any of its Subsidiaries Party as a result of this Agreement or the Arrangement; orand
(db) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company such Party shall contemporaneously provide a copy of any such written notice or communication to Canopy to the extent permitted by Lawother Party).
(4) The Purchaser and Canopy shall promptly notify the Company in writing of any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreement.
Appears in 2 contracts
Samples: Arrangement Agreement (TerrAscend Corp.), Arrangement Agreement
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)4.4, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of ArrangementAgreement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement within its control and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) the Company using commercially reasonable efforts to obtain, maintain or provide, as applicable, as soon as practicable following execution of this Agreement, all third party or other consents, waivers, notices, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained or provided under any Material Contracts, Authorizations and leases of the Company and its Subsidiaries in connection with the Arrangement or this Agreement, or (ii) required in order to maintain any Material Contracts, Authorizations and leases of the Company and its Subsidiaries in full force and effect following completion of the Arrangement, in each case, on terms that are reasonably satisfactory to the Purchaser;
(c) except with respect to the Regulatory Approvals which will be governed by Section 4.4, using commercially reasonable efforts to effect all necessary registrations, filings and submissions of information required by Governmental Entities from it related to the Arrangement or the transactions contemplated by this Agreement;
(d) using commercially reasonable efforts, in consultation with the other Parties, to oppose, lift or rescind any injunction, restraining or other order, decree or ruling under Law seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and
(ce) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants and agrees that, other than set out in Section 4.2(1) of the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicable.
(3) The Company shall promptly notify Canopy the Purchaser in writing of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person (including any Governmental Entity) alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person (or another Person) is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating terminating, may terminate or otherwise is, or may be proposing to, materially adversely modifying its a material business relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; orSubsidiaries;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement Agreement, the Arrangement, any Authorization or Regulatory Approval (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser); and
(e) any material filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Company, any of its Subsidiaries or the Company Assets.
(3) The Company will, in all material respects, conduct itself so as to keep the Purchaser fully informed as to the extent permitted material decisions required to be made or material actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by Law)reason of confidentiality obligation owed to a third party for which a waiver could not be obtained.
(4) The Purchaser and Canopy shall promptly notify the Company in writing of of:
(a) any Purchaser Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required Governmental Entity in connection with this Agreement or the Arrangement (and the Purchaser shall contemporaneously provide a copy of any such written notice or communication to the Company); and
(c) any material filings, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Purchaser in relation to this Agreement or the Arrangement.
(5) Canopy covenants and agrees with The Company shall assist in effecting the Company that prior to resignations of each member of the exchange Board, each member of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent board of directors of each of the Company's Subsidiaries and its other investments and its officers and the officers of each such Persons, in each case to the extent requested by the Purchaser and as at the Effective Time and causing any such consent not Persons to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate replaced by Persons identified by the Consent Agreement.
(6) Canopy covenants and agrees with Purchaser as of the Effective Time. Such resignations shall be received in consideration for the Company that prior providing releases to, and receiving releases from, each such Person (the "Mutual Releases"), which Mutual Releases shall be in a form mutually acceptable to the exchange of all Canopy Shares held by CBG Purchaser and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, each acting reasonably, and contain exceptions for amounts or obligations owing to such consent not to be unreasonably withheldPersons including bonus, conditioned or delayedseverance and change of control payments, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior other payments due pursuant to the exchange of all Canopy Shares held by CBG Arrangement as a Company Securityholder, benefits and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not other compensation or pursuant to be unreasonably withheld, conditioned directors' and officer's indemnities or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreementinsurance arrangements.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreement.
Appears in 1 contract
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)4.6, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of ArrangementAgreement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) using commercially reasonable efforts to obtain the Regulatory Approvals and Authorizations required to be obtained by the Company or the Purchaser under any applicable Law, from any Governmental Entity or from any third party that would, if not obtained, materially impede the completion of the transactions contemplated by this Agreement or have a Company Material Adverse Effect or Purchaser Material Adverse Effect, as applicable;
(c) using commercially reasonable efforts to obtain, as soon as practicable following execution of this Agreement, and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained under the Material Contracts of the Parties in connection with the Arrangement or this Agreement, (ii) required in order to maintain the Material Contracts of the Parties in full force and effect following completion of the Arrangement or (iii) otherwise necessary or desirable in connection with the Arrangement or this Agreement, in each case, on terms that are reasonably satisfactory to the Purchaser and provided that the Company may not make any payment to obtain any third party consent (including any consent under any Material Contract) without the consent of the Purchaser, acting reasonably;
(d) using commercially reasonable efforts to effect or cooperate as necessary to effect all necessary registrations, filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the transactions contemplated by this Agreement and participate, and appear in any proceedings of, any Party before any Governmental Entity in connection with the transactions contemplated by this Agreement;
(e) using commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
(f) using commercially reasonable efforts to make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated hereby and take all reasonable action necessary to be in compliance with such Laws, including any filings, reports, documents or applications as required to be filed by any Party; and
(cg) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants and agrees that, other than set out in Section 4.2(1) Subject to receipt of the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement underPurchaser Shareholder Approval, the Company Floating Securities or Purchaser shall use its commercially reasonable efforts to obtain and maintain in force the Amended Equity Incentive Plan, as applicableStock Exchange Approval.
(3) The Purchaser shall on or before the Effective Date reserve a sufficient number of Consideration Shares to be issued upon completion of the Arrangement.
(4) The Company shall on or before the Effective Time obtain and deliver to the Purchaser duly executed resignation and release letters, in a form and substance agreed to by the Purchaser, acting reasonably, effective as of the Effective Time, of those directors and officers of the Company and its Subsidiaries as may be agreed to by the Company and the Purchaser prior to the Effective Time.
(5) The Purchaser shall on or before the Effective Time obtain and deliver to the Company duly executed resignation and release letters, in a form and substance agreed to by the Company, acting reasonably, effective as of the Effective Time, of those directors and officers of the Purchaser and its Subsidiaries as may be agreed to by the Company and the Purchaser prior to the Effective Time and shall take such steps as a reasonably required to cause the appointment of four (4) nominees of the Company to the Purchaser Board and limit the number of Purchaser nominees to the Purchaser Board to two (2).
(6) The Company shall promptly notify Canopy the Purchaser of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or, and such relationship is material to the Company and its Subsidiaries taken as a whole;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser);
(e) the occurrence of any default, event of default, acceleration or enforcement, in each case, under or in connection with any material debt of the Company or any of its Subsidiaries, and the Company shall provide promptly to the extent permitted by Law)Purchaser copies of all notices and correspondence in connection with the foregoing; or
(f) any material filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries.
(47) The Purchaser and Canopy shall promptly notify the Company in writing of of:
(a) any Purchaser Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.;
(5c) Canopy covenants and agrees any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company that prior Purchaser or any of its Subsidiaries as a result of this Agreement or the Arrangement, and such relationship is material to the exchange of all Canopy Shares held by CBG Purchaser and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.its Subsidiaries taken as a whole;
(6d) Canopy covenants any notice or other communication from any Governmental Entity in connection with this Agreement (and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake contemporaneously provide a copy of any further mergersuch written notice or communication to the Company);
(e) the occurrence of any default, amalgamationevent of default, statutory arrangementacceleration or enforcement, share exchangein each case, consolidation, business combination, recapitalization, sale under or other disposition of the assets in connection with any material debt of the Purchaser or any of its Subsidiaries Subsidiaries, and the Purchaser shall provide promptly to the Company copies of all notices and correspondence in a single transaction connection with the foregoing; or
(f) any material filing, actions, suits, claims, investigations or a series proceedings commenced relating to or involving or otherwise affecting the Purchaser or any of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreementits Subsidiaries.
Appears in 1 contract
Samples: Arrangement Agreement
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)5.4, each of the Company, the Company and Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of ArrangementAgreement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) using commercially reasonable efforts to take, or cause to be taken, all other actions necessary, proper or advisable in order for it to fulfil its obligations under this Agreement;
(c) using commercially reasonable efforts to obtain, as soon as practicable following execution of this Agreement, and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained under the Material Contracts in connection with the Arrangement or this Agreement, or (ii) required in order to maintain the Material Contracts in full force and effect following completion of the Arrangement, in each case, on terms that are reasonably satisfactory to Purchaser and, other than as set forth in the Material Contracts, without paying, and without committing itself or the other Party to pay, any consideration or incur any additional expense, fee, liability or obligation without the prior written consent of the other Party, acting reasonably;
(d) using commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
(e) using reasonable commercially reasonable efforts to continue to maintain its status as a “reporting issuer” (or similar designated entity) not in default under Applicable Securities Laws in force in all provinces and territories of Canada where it is a reporting issuer as of the date hereof; and
(cf) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants Purchaser shall use its commercially reasonable efforts to obtain and agrees that, other than set out maintain in Section 4.2(1) of force the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicableStock Exchange Approvals.
(3) The Company shall promptly notify Canopy Purchaser of:
(a) any Company Material Adverse EffectChange in respect of Company;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser); or
(e) any filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the extent permitted by Law)Company or any of its Subsidiaries.
(4) The Company will, in all material respects, conduct itself so as to keep Purchaser and Canopy fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of confidentiality obligation owed to a third party for which a waiver could not be obtained.
(5) Purchaser shall promptly notify the Company in writing of:
(a) any Material Adverse Change in respect of Purchaser;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.;
(5c) Canopy covenants and agrees with the Company that prior any material filing, actions, suits, claims, investigations or proceedings commenced or, to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Sharesits knowledge, without the prior written consent of the Companythreatened against, such consent not relating to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate involving or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of otherwise affecting the Purchaser or any of its Subsidiaries Subsidiaries; or
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and Purchaser shall contemporaneously provide a single transaction copy of any such written notice or a series of related transaction that could reasonably be expected communication to impede, prevent or materially delay completion of the transaction contemplated by this AgreementCompany).
Appears in 1 contract
Samples: Arrangement Agreement (HEXO Corp.)
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)4.4, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of ArrangementAgreement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) using commercially reasonable efforts to obtain, as soon as practicable following execution of this Agreement, and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained under the Material Contracts in connection with the Arrangement or this Agreement, or (ii) required in order to maintain the Material Contracts in full force and effect following completion of the Arrangement, in each case, on terms that are reasonably satisfactory to the Purchaser;
(c) using commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and
(cd) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants Purchaser shall use its commercially reasonable efforts to obtain and agrees that, other than set out maintain in Section 4.2(1) of force the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicableStock Exchange Approval.
(3) The Company shall promptly notify Canopy the Purchaser of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser); or
(e) any filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the extent permitted by Law)Company or any of its Subsidiaries.
(4) The Company will, in all material respects, conduct itself so as to keep the Purchaser and Canopy fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of confidentiality obligation owed to a third party for which a waiver could not be obtained.
(5) The Purchaser shall promptly notify the Company in writing of of:
(a) any Purchaser Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.;
(5c) Canopy covenants any filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Purchaser or any of its Subsidiaries; or
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and agrees with the Company that prior shall contemporaneously provide a copy of any such written notice or communication to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent AgreementPurchaser).
(6) Canopy The Purchaser hereby covenants and agrees with during the term of this Agreement:
(a) not to sell or transfer or otherwise dispose of any right or interest in any of the Company that prior Common Shares it currently owns or acquires after the date hereof (such securities, the “Subject Shares”) or enter into any agreement, arrangement, commitment or understanding in connection therewith;
(b) not to, other than as set forth herein, grant or agree to grant any proxies or powers of attorney, deposit any Subject Shares into a voting trust or pooling agreement, or enter into a voting agreement, commitment, understanding or arrangement, oral or written, with respect to the exchange voting of any Subject Shares;
(c) cause the Subject Shares to be counted as present for purposes of establishing quorum and to vote (or cause to be voted) all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate Subject Shares at the Protection Agreement.Company Meeting; and
(7d) The Purchaser covenants and agrees with to vote the Company that prior to the exchange of all Canopy Subject Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent in favour of the Companyapproval, such consent not to be unreasonably withheldconsent, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants ratification and agrees with the Company that prior to the Effective Time, without the prior written consent adoption of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Arrangement Resolution and the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction transactions contemplated by this Agreementhereby.
Appears in 1 contract
Samples: Arrangement Agreement (Aphria Inc.)
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)4.4, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of ArrangementAgreement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement within its control and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) the Company using commercially reasonable efforts to obtain, maintain or provide, as applicable, as soon as practicable following execution of this Agreement, all third party or other consents, waivers, notices, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained or provided under the Material Contracts or under the Authorizations and leases of the Company and its Subsidiaries in connection with the Arrangement or this Agreement, (ii) required in order to maintain the Material Contracts and Authorizations and leases of the Company and its Subsidiaries in full force and effect following completion of the Arrangement, in each case, on terms that are reasonably satisfactory to the Purchaser, or (iii) that are required in the reasonable opinion of the Purchaser to minimize applicable Taxes;
(c) using commercially reasonable efforts to effect all necessary registrations, filings and submissions of information required by Governmental Entities from it related to the Arrangement or the transactions contemplated by this Agreement;
(d) using commercially reasonable efforts, in consultation with the other Party, to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
(e) using commercially reasonable efforts, in consultation with the other Party, if required, to prepare and file a Notification and Report Form pursuant to the HSR Act with respect to the Arrangement and the other transactions contemplated by this Agreement as promptly as practicable, and in any event, if required, within twenty five (25) business days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as reasonably practicable; and
(cf) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants Purchaser shall use its commercially reasonable efforts to obtain and agrees that, other than set out maintain in Section 4.2(1) force the listing of the Company Disclosure Letter, during Purchaser Shares on the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicableCSE.
(3) The Company shall promptly notify Canopy the Purchaser in writing of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person (including any Governmental Entity) alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person (or another Person) is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating terminating, may terminate or otherwise is or may be materially adversely modifying its a material business relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement Agreement, the Arrangement, any Authorization or Regulatory Approval (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser); and
(e) any filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the extent permitted by Law)Company, any of its Subsidiaries or the Company Assets.
(4) The Company will, in all material respects, conduct itself so as to keep the Purchaser and Canopy fully informed as to the material decisions required to be made or material actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of confidentiality obligation owed to a third party for which a waiver could not be obtained.
(5) The Purchaser shall promptly notify the Company in writing of of:
(a) any Purchaser Material Adverse Effect;
(b) any notice or other communication from any Person (including any Governmental Entity) alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person (or another Person) is required in connection with this Agreement or the Arrangement.;
(5c) Canopy covenants any notice or other communication from any Governmental Entity in connection with this Agreement or the Arrangement (and agrees with the Company that prior Purchaser shall contemporaneously provide a copy of any such written notice or communication to the exchange of all Canopy Shares held by CBG and Greenstar into Company); and
(d) any filings, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affect the Exchangeable Canopy Shares, without Purchaser in relation to this Agreement or the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent AgreementArrangement.
(6) Canopy covenants and agrees with The Company shall assist in effecting the Company that prior to resignations of each member of the exchange Board, each member of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent board of directors of each of the Company’s Subsidiaries and its other investments and its officers and the officers of each such Persons (in each case, other than Key Employees as employees provided such consent not individuals enter into employment agreements set out in Section 4.11 as of the Effective Time), in each case to the extent requested by the Purchaser and as at the Effective Time and causing any such Persons to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate replaced by Persons identified by the Protection Agreement.
(7) The Purchaser covenants and agrees with as of the Effective Time. Such resignations shall be received in consideration for the Company that prior providing releases to, and receiving releases from, each such Person (the “Mutual Releases”), which Mutual Releases shall be in a form mutually acceptable to the exchange of all Canopy Shares held by CBG Purchaser and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, each acting reasonably, and contain exceptions for amounts or obligations owing to such consent not Persons including bonus, severance and change of control payments, other payments due pursuant to be unreasonably withheldthe Arrangement as a Company Securityholder, conditioned benefits and other compensation or delayedpursuant to directors' and officer's indemnities or insurance arrangements, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with in each case as disclosed in Section 21(f) of the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this AgreementDisclosure Letter.
Appears in 1 contract
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)4.3, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of Arrangement, including using commercially reasonable efforts to:
(a) satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation Arrangement;
(b) as soon as practicable following execution of this Agreement, obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are:
(i) necessary to be obtained under the Material Contracts or the Company Lease Documents, as applicable, in connection with the Arrangement or this Agreement; or
(ii) required in order to maintain the Material Contracts or Company Lease Documents, as applicable, in full force and effect following completion of the Arrangement;
(bc) at any time following the date of this Agreement and, in any event, not later than as soon as practicable following the exercise or deemed exercise of the Purchaser Call Option, obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are:
(i) necessary to be obtained under the Material Contracts or the Company Lease Documents, as applicable, in connection with the Acquisition; or
(ii) required in order to maintain the Material Contracts or the Company Lease Documents, as applicable, in full force and effect following completion of the Acquisition, in each case, on terms reasonably satisfactory to the Purchaser;
(d) oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement or the Acquisition, as applicable, and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and;
(ce) revise the High Street Operating Agreement as mutually agreed between the Company and the Purchaser in accordance with the principal terms set forth in Exhibit 1 hereto;
(f) revise the USCo2 Constating Documents as mutually agreed between the Company and the Purchaser in accordance with the principal terms set forth in Exhibit 1 hereto;
(g) revise the Tax Receivable Agreement as mutually agreed between the Company and the Purchaser in accordance with the principal terms set forth in Exhibit 2 hereto;
(h) not take taking any action, or refrain from taking any action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the Acquisition, as applicable, or the transactions contemplated by this Agreement; and
(i) at any time following the date of this Agreement and, in any event, not later than following the exercise or deemed exercise of the Purchaser Call Option, satisfy, or cause the satisfaction of, all of the Acquisition Closing Conditions.
(2) The Company covenants and agrees that, other than set out in Section 4.2(1) of the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicable.
(3) The Company shall promptly notify Canopy the Purchaser of:
: (a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy to the extent permitted by Law).
(4) The Purchaser and Canopy shall promptly notify the Company in writing of any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreement.
Appears in 1 contract
Samples: Arrangement Agreement
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)5.4, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of ArrangementAgreement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) using commercially reasonable efforts to obtain, as soon as practicable following execution of this Agreement, and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained under the Material Contracts in connection with the Arrangement or this Agreement, or (ii) required in order to maintain the Material Contracts in full force and effect following completion of the Arrangement, in each case, on terms that are reasonably satisfactory to the Purchaser;
(c) using commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and
(cd) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants Purchaser shall use its commercially reasonable efforts to obtain and agrees that, other than set out maintain in Section 4.2(1) of force the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicableStock Exchange Approvals.
(3) The Company shall promptly notify Canopy Purchaser of:
(a) any Company Material Adverse EffectChange in respect of Company;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser); or
(e) any filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the extent permitted by Law)Company or any of its Subsidiaries.
(4) The Company will, in all material respects, conduct itself so as to keep Purchaser and Canopy fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of confidentiality obligation owed to a third party for which a waiver could not be obtained.
(5) Purchaser shall promptly notify the Company in writing of:
(a) any Material Adverse Change in respect of Purchaser;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.;
(5c) Canopy covenants and agrees with the Company that prior any filing, actions, suits, claims, investigations or proceedings commenced or, to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Sharesits knowledge, without the prior written consent of the Companythreatened against, such consent not relating to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate involving or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of otherwise affecting the Purchaser or any of its Subsidiaries Subsidiaries; or
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and Company shall contemporaneously provide a single transaction copy of any such written notice or a series of related transaction that could reasonably be expected communication to impede, prevent or materially delay completion of the transaction contemplated by this AgreementPurchaser).
Appears in 1 contract
Samples: Arrangement Agreement (HEXO Corp.)
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 the terms and Section 4.4(4), each conditions of the Companythis Agreement, the Purchaser Company shall, and Canopy shall each (and each shall cause its respective affiliates Subsidiaries to) use , perform all obligations required to be performed by the Company or any of its Subsidiaries under this Agreement, reasonably cooperate with the Purchaser in connection therewith, and do all such other commercially reasonable efforts to take, acts and things as may be necessary or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law desirable to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and Arrangement and, without limiting the Plan generality of Arrangementthe foregoing, including using commercially reasonable efforts the Company shall and, where appropriate, shall cause each of its Subsidiaries to:
(a) satisfyuse its commercially reasonable efforts to obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or cause confirmations that are (i) necessary or advisable under its Material Contracts and Authorizations in connection with the satisfaction ofArrangement or (ii) required in order to maintain its Material Contracts and Authorizations in full force and effect following completion of the Arrangement (including the Key Consents/Waivers to the extent not obtained prior to execution of this Agreement), all conditions precedent in each case, on terms that are reasonably satisfactory to be fulfilled by it in this Agreement the Purchaser, and take all steps set forth in the Interim Order without paying, and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement without committing itself or the implementation Purchaser to pay, any consideration or incur any liability or obligation without the prior written consent of the ArrangementPurchaser;
(b) prepare and file, as promptly as practicable, all necessary documents, registrations, statements, petitions, filings and applications for the Regulatory Approvals required to be obtained by the Company or any of its Subsidiaries and use its commercially reasonable efforts to obtain and maintain all such Regulatory Approvals, and provide or submit all documentation and information that is required, or in the reasonable opinion of the Purchaser, advisable, in connection with obtaining such Regulatory Approvals and to keep the Purchaser reasonably apprised of the status of such Regulatory Approvals (but only to the extent that the Company has knowledge of such status) and make available to the Purchaser all copies of such materials;
(c) use its commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and use its commercially reasonable efforts to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
(d) carry out the terms of the Interim Order and the Final Order applicable to it and comply promptly with all requirements imposed by Law on it or its Subsidiaries with respect to this Agreement or the Arrangement;
(e) not take any action, or refrain from taking any commercially reasonable action, or permit any action to be taken or not taken, which is inconsistent with this Agreement or which would reasonably be expected to prevent, delay or otherwise impede the consummation of the Arrangement;
(f) comply with CSE requirements relevant to this Agreement; and
(g) use commercially reasonable efforts to satisfy all conditions precedent set forth in Section 6.1 and Section 6.2 of this Agreement.
(2) Subject to the terms and conditions of this Agreement, the Purchaser shall, and shall cause its Subsidiaries to, perform all obligations required to be performed by the Purchaser or any of its Subsidiaries under this Agreement, reasonably cooperate with the Company in connection therewith, and do all such other commercially reasonable acts and things as may be necessary or desirable to consummate and make effective, as soon as reasonably practicable, the Arrangement and, without limiting the generality of the foregoing, the Purchaser shall and, where appropriate, shall cause each of its Subsidiaries to:
(a) use its commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of the Arrangement and use its commercially reasonable efforts to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
(b) carry out the terms of the Interim Order and the Final Order applicable to it and comply promptly with all requirements imposed by Law on it or its Subsidiaries with respect to this Agreement or the Arrangement;
(c) not take any action, or refrain from taking any commercially reasonable action, or permitting permit any action to be taken or not taken, which is inconsistent with this Agreement or which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants and agrees that, other than set out in Section 4.2(1) of the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicable.
(3) The Company shall promptly notify Canopy of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(cd) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result soon as practical after execution of this Agreement or the Arrangement; or
(d) Agreement, and in any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy to the extent permitted by Law).
(4) The Purchaser and Canopy shall promptly notify the Company in writing of any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreement.event no later than ten
Appears in 1 contract
Samples: Arrangement Agreement
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)4.4, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of ArrangementAgreement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) using commercially reasonable efforts to obtain, as soon as practicable following execution of this Agreement, and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained under the Material Contracts in connection with the Arrangement or this Agreement, or (ii) required in order to maintain the Material Contracts in full force and effect following completion of the Arrangement, in each case, on terms that are reasonably satisfactory to the Purchaser;
(c) using commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and
(cd) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants Purchaser shall use its commercially reasonable efforts to obtain and agrees that, other than set out maintain in Section 4.2(1) of force the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicableStock Exchange Approval.
(3) The Company shall promptly notify Canopy the Purchaser of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser); or
(e) any filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the extent permitted by Law)Company or any of its Subsidiaries.
(4) The Company will, in all material respects, conduct itself so as to keep the Purchaser and Canopy fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of confidentiality obligation owed to a third party for which a waiver could not be obtained.
(5) The Purchaser shall promptly notify the Company in writing of of:
(a) any Purchaser Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.;
(5c) Canopy covenants any filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Purchaser or any of its Subsidiaries; or
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and agrees with the Company that prior shall contemporaneously provide a copy of any such written notice or communication to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent AgreementPurchaser).
(6) Canopy The Purchaser hereby covenants and agrees with during the term of this Agreement:
(a) not to, other than as set forth herein, grant or agree to grant any proxies or powers of attorney, deposit any of the Company that prior Common Shares it currently owns or acquires after the date hereof (such securities, the “Subject Shares”) into a voting trust or pooling agreement, or enter into a voting agreement, commitment, understanding or arrangement, oral or written, with respect to the exchange voting of any Subject Shares;
(b) cause the Subject Shares to be counted as present for purposes of establishing quorum and to vote (or cause to be voted) all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate Subject Shares at the Protection Agreement.Company Meeting; and
(7c) The Purchaser covenants and agrees with to vote the Company that prior to the exchange of all Canopy Subject Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent in favour of the Companyapproval, such consent not to be unreasonably withheldconsent, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants ratification and agrees with the Company that prior to the Effective Time, without the prior written consent adoption of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Arrangement Resolution and the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction transactions contemplated by this Agreementhereby.
Appears in 1 contract
Samples: Arrangement Agreement
Covenants Regarding the Arrangement. (1) . Subject to Section 4.2 the provisions of this Agreement, the Purchaser shall, and Section 4.4(4)the Company shall and shall cause its Subsidiaries, each to the extent applicable, to, perform all obligations required to be performed by such Party or, in the case of the Company, any of its Subsidiaries, under this Agreement, cooperate with the Purchaser other Party in connection therewith, and Canopy shall each (do all such other acts and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, things as may be necessary or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law desirable to consummate and make make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and Arrangement and, without limiting the Plan generality of Arrangementthe foregoing, including using commercially reasonable efforts toeach Party shall and, in the case of the Company, shall cause each of its Subsidiaries to:
(a) a. satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it set forth in Section 6.1, Section 6.2 and Section 6.3, as applicable, in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) b. use commercially reasonable efforts to take, or cause to be taken, all other actions necessary, proper or advisable in order for it to fulfil its obligations under this Agreement;
c. use commercially reasonable efforts to, on prior written approval of the other Party, oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
d. continue to maintain its status as a "reporting issuer" (or similar designated entity) not in default under Canadian Securities Laws in force in all provinces and territories of Canada and maintain its status as an issuer required to file reports under the U.S. Exchange Act;
e. comply with any TSX and Nasdaq requirements, including with respect to this Agreement and the Arrangement; and
(c) f. not take any action, or refrain from taking any reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants and agrees that, other than set out in . Without limiting the generality of Section 4.2(1) of the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards4.3(1), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Planwill and, as applicable.
(3) The Company shall promptly notify Canopy ofwhere appropriate, will cause its Subsidiaries to:
(a) a. promptly advise the Purchaser in writing of any Company event, change or development that has resulted in, or that to the Company’s knowledge would have, a Material Adverse EffectEffect in respect of the Company;
(b) b. promptly advise the Purchaser in writing of any notice Action commenced or, to the Company’s knowledge, threatened against, relating to or involving or otherwise affecting the Company, its Subsidiaries or its or their respective assets;
c. use reasonable efforts to obtain all other communication from any third Person alleging consents, waivers, Permits, including Cannabis Licenses, exemptions, orders, approvals, agreements, amendments and modifications to Contracts that the consent (are necessary to permit or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is otherwise required in connection with this Agreement the consummation of the Transaction; and
d. give the Purchaser prompt notice of (i) any written notice of any Dissent Rights exercised or the Arrangement;
(c) purported to have been exercised by any notice or other communication from any Person Company Shareholder received by the Company in relation to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with Meeting and Arrangement Resolution and any withdrawal of Dissent Rights received by the Company and, subject to applicable Laws, any written communications sent by or on behalf of the Company to any Company Shareholder exercising or purporting to exercise Dissent Rights in relation to the Arrangement Resolution and (ii) any claim or other Action commenced (or, to the Company’s knowledge, threatened) by any present, former or purported holder of its Subsidiaries as a result any securities of this Agreement or the Arrangement; or
(d) any notice or other communication from any Governmental Entity Company in connection with this Agreement (and the transactions contemplated hereby. Other than as required by applicable Law, the Company shall contemporaneously provide a copy of not make any payment or settlement offer, or agree to any settlement, prior to the Effective Time with respect to any such written dissent, notice or communication instrument or claim or other Action unless the Purchaser, acting reasonably, shall have given its written consent to Canopy to the extent permitted by Law)such payment, settlement offer or agreement, as applicable.
(4) The 3. Without limiting the generality of Section 4.3(1), the Purchaser and Canopy shall will:
a. promptly notify advise the Company in writing of any notice event, change or other communication from any Person alleging development that the consent (has resulted in, or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy SharesPurchaser’s knowledge would have, without the prior written consent a Material Adverse Effect in respect of the Company, such consent not to be unreasonably withheld, conditioned Purchaser;
b. obtain and maintain the Stock Exchange Approvals; and
c. at or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without authorize, allot and reserve for issuance a sufficient number of Purchaser Shares to meet its obligation to (i) issue Consideration Shares under the prior written consent Plan of Arrangement; and (ii) issue Purchaser Shares upon exercise of the Company Warrants and the vesting of the Company Awards, all in accordance with the terms of the Plan of Arrangement.
4. The Parties agree that the Company shall elect (in its Tax Return filed for the taxation year immediately prior to the change of control of the Company on the Effective Date) under Section 256(9) of the Tax Act, in the manner and within the time presented by the Tax Act, for the Company, such consent not ’s taxation year-end to be unreasonably withheld, conditioned or delayed, deemed to occur immediately before the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition Purchaser’s acquisition of the assets Company Shares pursuant to the Plan of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this AgreementArrangement.
Appears in 1 contract
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 the terms and Section 4.4(4), each conditions of the Companythis Agreement, the Purchaser Company shall, and Canopy shall each (and each shall cause its respective affiliates Subsidiaries to) use , perform all obligations required to be performed by the Company or any of its Subsidiaries under this Agreement, reasonably cooperate with the Purchaser in connection therewith, and do all such other commercially reasonable efforts to take, acts and things as may be necessary or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law desirable to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and Arrangement and, without limiting the Plan generality of Arrangementthe foregoing, including using commercially reasonable efforts the Company shall and, where appropriate, shall cause each of its Subsidiaries to:
(a) satisfyuse its commercially reasonable efforts to obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or cause confirmations that are (i) necessary or advisable under its Material Contracts, Permits and Authorizations in connection with the satisfaction ofArrangement or (ii) required in order to maintain its Material Contracts, all conditions precedent Permits and Authorizations in full force and effect following completion of the Arrangement (including the Key Consents/Waivers to be fulfilled by it the extent not obtained prior to execution of this Agreement), in this Agreement each case, on terms that are reasonably satisfactory to the Purchaser, and take all steps set forth in the Interim Order without paying, and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement without committing itself or the implementation Purchaser to pay, any consideration or incur any liability or obligation without the prior written consent of the ArrangementPurchaser;
(b) prepare and file, as promptly as practicable, all necessary documents, registrations, statements, petitions, filings and applications for the Regulatory Approvals required to be obtained by the Company or any of its Subsidiaries and use its commercially reasonable efforts to obtain and maintain all such Regulatory Approvals, and provide or submit all documentation and information that is required, or in the reasonable opinion of the Purchaser, advisable, in connection with obtaining such Regulatory Approvals and to keep the Purchaser reasonably apprised of the status of such Regulatory Approvals (but only to the extent that the Company has knowledge of such status) and make available to the Purchaser all copies of such materials;
(c) use its commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and use its commercially reasonable efforts to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
(d) carry out the terms of the Interim Order and the Final Order applicable to it and comply promptly with all requirements imposed by Law on it or its Subsidiaries with respect to this Agreement or the Arrangement;
(e) not take any action, or refrain from taking any commercially reasonable action, or permit any action to be taken or not taken, which is inconsistent with this Agreement or which would reasonably be expected to prevent, delay or otherwise impede the consummation of the Arrangement;
(f) comply with CSE requirements relevant to this Agreement; and
(g) use commercially reasonable efforts to satisfy all conditions precedent set forth in Section 6.1 and Section 6.2 of this Agreement.
(2) Subject to the terms and conditions of this Agreement, the Purchaser shall, and shall cause its Subsidiaries to, perform all obligations required to be performed by the Purchaser or any of its Subsidiaries under this Agreement, reasonably cooperate with the Company in connection therewith, and do all such other commercially reasonable acts and things as may be necessary or desirable to consummate and make effective, as soon as reasonably practicable, the Arrangement and, without limiting the generality of the foregoing, the Purchaser shall and, where appropriate, shall cause each of its Subsidiaries to:
(a) use its commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of the Arrangement and use its commercially reasonable efforts to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
(b) carry out the terms of the Interim Order and the Final Order applicable to it and comply promptly with all requirements imposed by Law on it or its Subsidiaries with respect to this Agreement or the Arrangement;
(c) not take any action, or refrain from taking any commercially reasonable action, or permitting permit any action to be taken or not taken, which is inconsistent with this Agreement or which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement Arrangement;
(d) take all such commercially reasonable actions as may be necessary or desirable, in the transactions contemplated opinion of the Company, acting reasonably, to obtain any necessary Regulatory Approvals;
(e) on or before the Effective Date reserve a sufficient number of Consideration Shares to be issued upon completion of the Arrangement;
(f) apply for and use commercially reasonable efforts to obtain conditional listing approval of the CSE, for the Consideration Shares to be issued upon completion of the Arrangement, subject only to the satisfaction of customary conditions required by the CSE;
(g) negotiate reasonably and in good faith the terms and conditions of compensation arrangements and allocation of Purchaser incentive securities to be granted on or as soon as practicable following the date hereof and prior to the Effective Date to certain continuing employees of the Company, in a manner satisfactory to each of Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxxx, on the one hand, and the Purchaser, on the other hand, each acting reasonably, which will result in the grant of Purchaser options or other equity- based compensation issuable into an aggregate of between a minimum of seven percent (7%) and a maximum of ten percent (10%) of the total number of Purchaser Shares issued pursuant to the Plan of Arrangement;
(h) comply with CSE requirements relevant to this Agreement; and
(i) use commercially reasonable efforts to satisfy all conditions precedent set forth in Section 6.1 and Section 6.3 of this Agreement.
(3) Each of the Parties shall promptly, and in any event within two (2) The Company covenants and agrees that, other than set out in Section 4.2(1) Business Days of each of the Company Disclosure Letterfollowing, during notify the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicable.
(3) The Company shall promptly notify Canopy Party of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging (i) that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
, or (cii) any notice or other communication from any Person to the effect that such Person is terminating or may terminate or is otherwise materially adversely modifying or may materially adversely modify its relationship with the Company or any of its Subsidiaries Party as a result of this Agreement or the Arrangement; orand
(db) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company such Party shall contemporaneously provide a copy of any such written notice or communication to Canopy to the extent permitted by Lawother Party).
(4) The Purchaser and Canopy shall promptly notify the Company in writing of any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreement.
Appears in 1 contract
Samples: Arrangement Agreement
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 the provisions of this Agreement, the Purchaser shall, and Section 4.4(4)the Company shall and shall cause its Subsidiaries, each to the extent applicable, to, perform all obligations required to be performed by such Party or, in the case of the Company, any of its Subsidiaries, under this Agreement, cooperate with the Purchaser other Party in connection therewith, and Canopy shall each (do all such other acts and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, things as may be necessary or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law desirable to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and Arrangement and, without limiting the Plan generality of Arrangementthe foregoing, including using commercially reasonable efforts each Party shall and, in the case of the Company, shall cause each of its Subsidiaries to:
(a) satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it set forth in Section 6.1, Section 6.2 and Section 6.3, as applicable, in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) use commercially reasonable efforts to take, or cause to be taken, all other actions necessary, proper or advisable in order for it to fulfil its obligations under this Agreement;
(c) use commercially reasonable efforts to, on prior written approval of the other Party, oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
(d) continue to maintain its status as a “reporting issuer” (or similar designated entity) not in default under Canadian Securities Laws in force in all provinces and territories of Canada and maintain its status as an issuer required to file reports under the U.S. Exchange Act;
(e) comply with any TSX and Nasdaq requirements, including with respect to this Agreement and the Arrangement; and
(cf) not take any action, or refrain from taking any reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants and agrees thatWithout limiting the generality of Section 4.3(1), other than set out in Section 4.2(1) of the Company Disclosure Letterwill and, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with where appropriate, will cause its terms, except with Canopy’s prior written consent, it shall notSubsidiaries to:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights promptly advise the Purchaser in writing of any kind to acquire (whether on exchangeevent, exercisechange or development that has resulted in, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant that to the exercise or settlement (as applicable) of Company Floating OptionsCompany’s knowledge would have, Company Floating Share Units or Company Floating Warrants that are outstanding as a Material Adverse Effect in respect of the date of this Agreement in accordance with their terms; orCompany;
(b) take promptly advise the Purchaser in writing of any action Action commenced or, to amend the Company’s knowledge, threatened against, relating to or waive involving or otherwise affecting the Company, its Subsidiaries or its or their respective assets;
(c) use reasonable efforts to obtain all other third Person consents, waivers, Permits, including Cannabis Licenses, exemptions, orders, approvals, agreements, amendments and modifications to Contracts that are necessary to permit or otherwise required in connection with the consummation of the Transaction; and
(d) give the Purchaser prompt notice of (i) any performancewritten notice of any Dissent Rights exercised or purported to have been exercised by any Company Shareholder received by the Company in relation to the Meeting and Arrangement Resolution and any withdrawal of Dissent Rights received by the Company and, vesting subject to applicable Laws, any written communications sent by or settlement criteria ofon behalf of the Company to any Company Shareholder exercising or purporting to exercise Dissent Rights in relation to the Arrangement Resolution and (ii) any claim or other Action commenced (or, to the Company’s knowledge, threatened) by any present, former or accelerate vesting or settlement underpurported holder of any securities of the Company in connection with the transactions contemplated hereby. Other than as required by applicable Law, the Company Floating Securities shall not make any payment or settlement offer, or agree to any settlement, prior to the Amended Equity Incentive PlanEffective Time with respect to any such dissent, notice or instrument or claim or other Action unless the Purchaser, acting reasonably, shall have given its written consent to such payment, settlement offer or agreement, as applicable.
(3) The Company shall promptly notify Canopy ofWithout limiting the generality of Section 4.3(1), the Purchaser will:
(a) promptly advise the Company in writing of any Company event, change or development that has resulted in, or that to the Purchaser’s knowledge would have, a Material Adverse EffectEffect in respect of the Purchaser;
(b) any notice or other communication from any Person alleging that obtain and maintain the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;Stock Exchange Approvals; and
(c) any notice at or other communication from any Person prior to the effect that such Person is terminating or otherwise materially adversely modifying Effective Time, authorize, allot and reserve for issuance a sufficient number of Purchaser Shares to meet its relationship obligation to (i) issue Consideration Shares under the Plan of Arrangement; and (ii) issue Purchaser Shares upon exercise of the Company Warrants and the vesting of the Company Awards, all in accordance with the Company or any terms of its Subsidiaries as a result the Plan of this Agreement or the Arrangement; or
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy to the extent permitted by Law).
(4) The Purchaser and Canopy shall promptly notify Parties agree that the Company shall elect (in writing of any notice or other communication from any Person alleging that its Tax Return filed for the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees with the Company that taxation year immediately prior to the exchange change of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent control of the Company on the Effective Date) under Section 256(9) of the Tax Act, in the manner and within the time presented by the Tax Act, for the Company, such consent not ’s taxation year-end to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate deemed to occur immediately before the Consent Agreement.
(6) Canopy covenants and agrees with Purchaser’s acquisition of the Company that prior Shares pursuant to the exchange Plan of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection AgreementArrangement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreement.
Appears in 1 contract
Samples: Arrangement Agreement (HEXO Corp.)
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)4.5, each of the CompanyBioCan, the Purchaser Makena and Canopy Epimeron shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of Arrangement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) using commercially reasonable efforts to obtain, as soon as practicable following execution of this Agreement, and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained under the Material Contracts in connection with the Arrangement or this Agreement, or (ii) required in order to maintain the Material Contracts in full force and effect following the Effective Time, in each case, on terms that are mutually satisfactory to the Parties, acting reasonably;
(c) using commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and
(cd) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this AgreementArrangement.
(2) The Company covenants Makena shall use commercial reasonable efforts to cause the resignation of its directors and agrees that, other than set out in Section 4.2(1) of the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of officers effective at the Effective Time and the time that this Agreement is terminated to secure mutual releases from each such director and officer, in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant a form satisfactory to the exercise or settlement (as applicable) Parties, each acting reasonably, in favour of Company Floating OptionsBioCan, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicableEpimeron and Makena.
(3) In respect of the Private Placement, the Parties will take all such commercially reasonably efforts to expeditiously pursue the satisfaction of all conditions to the completion, and the closing of, the Private Placement;
(4) Makena will take all such commercially reasonable efforts to expeditiously pursue the disposition of all Assets set forth in Schedule 4.4(4) of the Makena Disclosure Letter;
(5) The Company Parties shall cooperate and use commercial reasonable efforts to obtain and maintain in force the Exchange Approval for listing of the Makena Shares issuable pursuant to the Arrangement as of the Effective Date.
(6) Each of BioCan, Makena and Epimeron shall promptly notify Canopy the other Parties of:
(a) any Company Material Adverse EffectEffect with respect to BioCan, Makena or Epimeron, as applicable;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the ArrangementAgreement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company BioCan, Makena or any of its Subsidiaries Epimeron, as applicable, as a result of this Agreement or the Arrangement; orAgreement;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy to the extent permitted by Lawother Parties).; or
(4e) The Purchaser and Canopy shall promptly notify the Company in writing of any notice filing, actions, suits, claims, investigations or other communication from any Person alleging that the consent (proceedings commenced or, to its knowledge, threatened against, relating to or waiverinvolving or otherwise affecting BioCan, permitMakena or Epimeron, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreementas applicable.
(7) The Purchaser covenants and agrees with Each of the Company that prior Parties will, in all material respects, conduct itself so as to keep the other Parties fully informed as to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not material decisions required to be unreasonably withheld, conditioned made or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees actions required to be taken with the Company that prior respect to the Effective Timeoperation of their business, without the prior written consent provided that such disclosure is not otherwise prohibited by reason of the Company, such consent confidentiality obligation owed to a third party for which a waiver could not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreementobtained.
Appears in 1 contract
Samples: Arrangement Agreement
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 4.5, 51st Parallel and Section 4.4(4), each of the Company, the Purchaser and Canopy Target shall each (and each shall cause its respective affiliates to) use its their commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of Arrangement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) using commercially reasonable efforts to obtain, as soon as practicable following execution of this Agreement, and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained under the Material Contracts in connection with the Arrangement or this Agreement, or (ii) required in order to maintain the Material Contracts in full force and effect following the Effective Time, in each case, on terms that are mutually satisfactory to the Parties, acting reasonably;
(c) using commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and
(cd) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this AgreementArrangement.
(2) The Company covenants and agrees that, other than set out aggregate 51st Parallel Employee Obligations shall not exceed the amount as disclosed in writing by 51st Parallel to Target (subject to the exceptions noted therein) in Section 4.2(14.3(2) of the Company 51st Parallel Disclosure Letter, during the period from the date . 51st Parallel’s bona fide good faith estimate of this Agreement until the earlier each component of the Effective Time and the time that this Agreement is terminated 51st Parallel Employee Obligations has been disclosed in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree writing to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicableTarget.
(3) The Company Parties shall use commercial reasonable efforts to cause the resignation of their respective directors and officers effective at the Effective Time and to secure mutual releases from each such director and officer, in a form satisfactory to both Parties, each acting reasonably, in favour of 51st Parallel and Target.
(4) The Parties shall cooperate and use commercial reasonable efforts to obtain and maintain in force the Exchange Approval for listing of the Target Shares issuable pursuant to the Arrangement as of the Effective Date.
(5) Each of 51st Parallel and Target shall promptly notify Canopy the other Party of:
(a) any Company Material Adverse EffectEffect with respect to 51st Parallel or Target, as applicable;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the ArrangementAgreement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company 51st Parallel or any of its Subsidiaries Target, as applicable, as a result of this Agreement or the Arrangement; orAgreement;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy to the extent permitted by Lawother Party).; or
(4e) The Purchaser and Canopy shall promptly notify the Company in writing of any notice filing, actions, suits, claims, investigations or other communication from any Person alleging that the consent (proceedings commenced or, to its knowledge, threatened against, relating to or waiverinvolving or otherwise affecting 51st Parallel or Target, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreementas applicable.
(6) Canopy covenants and agrees with Each of the Company that prior Parties will, in all material respects, conduct itself so as to keep the other Party fully informed as to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not material decisions required to be unreasonably withheld, conditioned made or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees actions required to be taken with the Company that prior respect to the exchange operation of all Canopy Shares held their business, provided that such disclosure is not otherwise prohibited by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent reason of the Company, such consent confidentiality obligation owed to a third party for which a waiver could not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreementobtained.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreement.
Appears in 1 contract
Samples: Arrangement Agreement
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 the terms and Section 4.4(4), each conditions of the Companythis Agreement, the Purchaser Company shall, and Canopy shall each (and each shall cause its respective affiliates Subsidiaries to) use , perform all obligations required to be performed by the Company or any of its Subsidiaries under this Agreement, reasonably cooperate with the Purchaser in connection therewith, and do all such other commercially reasonable efforts to take, acts and things as may be necessary or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law desirable to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and Arrangement and, without limiting the Plan generality of Arrangementthe foregoing, including using commercially reasonable efforts the Company shall and, where appropriate, shall cause each of its Subsidiaries to:
(a) satisfyuse its commercially reasonable efforts to obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or cause confirmations that are (i) necessary or advisable under its Material Contracts, Permits and Authorizations in connection with the satisfaction ofArrangement or (ii) required in order to maintain its Material Contracts, all conditions precedent Permits and Authorizations in full force and effect following completion of the Arrangement (including the Key Consents/Waivers to be fulfilled by it the extent not obtained prior to execution of this Agreement), in this Agreement each case, on terms that are reasonably satisfactory to the Purchaser, and take all steps set forth in the Interim Order without paying, and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement without committing itself or the implementation Purchaser to pay, any consideration or incur any liability or obligation without the prior written consent of the ArrangementPurchaser;
(b) prepare and file, as promptly as practicable, all necessary documents, registrations, statements, petitions, filings and applications for the Regulatory Approvals required to be obtained by the Company or any of its Subsidiaries and use its commercially reasonable efforts to obtain and maintain all such Regulatory Approvals, and provide or submit all documentation and information that is required, or in the reasonable opinion of the Purchaser, advisable, in connection with obtaining such Regulatory Approvals and to keep the Purchaser reasonably apprised of the status of such Regulatory Approvals (but only to the extent that the Company has knowledge of such status) and make available to the Purchaser all copies of such materials;
(c) use its commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and use its commercially reasonable efforts to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
(d) carry out the terms of the Interim Order and the Final Order applicable to it and comply promptly with all requirements imposed by Law on it or its Subsidiaries with respect to this Agreement or the Arrangement;
(e) not take any action, or refrain from taking any commercially reasonable action, or permit any action to be taken or not taken, which is inconsistent with this Agreement or which would reasonably be expected to prevent, delay or otherwise impede the consummation of the Arrangement;
(f) comply with CSE requirements relevant to this Agreement; and
(g) use commercially reasonable efforts to satisfy all conditions precedent set forth in Section 6.1 and Section 6.2 of this Agreement.
(2) Subject to the terms and conditions of this Agreement, the Purchaser shall, and shall cause its Subsidiaries to, perform all obligations required to be performed by the Purchaser or any of its Subsidiaries under this Agreement, reasonably cooperate with the Company in connection therewith, and do all such other commercially reasonable acts and things as may be necessary or desirable to consummate and make effective, as soon as reasonably practicable, the Arrangement and, without limiting the generality of the foregoing, the Purchaser shall and, where appropriate, shall cause each of its Subsidiaries to:
(a) use its commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of the Arrangement and use its commercially reasonable efforts to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
(b) carry out the terms of the Interim Order and the Final Order applicable to it and comply promptly with all requirements imposed by Law on it or its Subsidiaries with respect to this Agreement or the Arrangement;
(c) not take any action, or refrain from taking any commercially reasonable action, or permitting permit any action to be taken or not taken, which is inconsistent with this Agreement or which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement Arrangement;
(d) take all such commercially reasonable actions as may be necessary or desirable, in the transactions contemplated opinion of the Company, acting reasonably, to obtain any necessary Regulatory Approvals;
(e) on or before the Effective Date reserve a sufficient number of Consideration Shares to be issued upon completion of the Arrangement;
(f) apply for and use commercially reasonable efforts to obtain conditional listing approval of the CSE, for the Consideration Shares to be issued upon completion of the Arrangement, subject only to the satisfaction of customary conditions required by the CSE;
(g) negotiate reasonably and in good faith the terms and conditions of compensation arrangements and allocation of Purchaser incentive securities to be granted on or as soon as practicable following the date hereof and prior to the Effective Date to certain continuing employees of the Company, in a manner satisfactory to each of Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxxx, on the one hand, and the Purchaser, on the other hand, each acting reasonably, which will result in the grant of Purchaser options or other equity-based compensation issuable into an aggregate of between a minimum of seven percent (7%) and a maximum of ten percent (10%) of the total number of Purchaser Shares issued pursuant to the Plan of Arrangement;
(h) comply with CSE requirements relevant to this Agreement; and
(i) use commercially reasonable efforts to satisfy all conditions precedent set forth in Section 6.1 and Section 6.3 of this Agreement.
(3) Each of the Parties shall promptly, and in any event within two (2) The Company covenants and agrees that, other than set out in Section 4.2(1) Business Days of each of the Company Disclosure Letterfollowing, during notify the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicable.
(3) The Company shall promptly notify Canopy Party of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging (i) that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
, or (cii) any notice or other communication from any Person to the effect that such Person is terminating or may terminate or is otherwise materially adversely modifying or may materially adversely modify its relationship with the Company or any of its Subsidiaries Party as a result of this Agreement or the Arrangement; orand
(db) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company such Party shall contemporaneously provide a copy of any such written notice or communication to Canopy to the extent permitted by Lawother Party).
(4) The Purchaser and Canopy shall promptly notify the Company in writing of any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreement.
Appears in 1 contract
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4), each Each of the Company, the Purchaser Parties (except as otherwise specified below) covenants and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of Arrangement, including using commercially reasonable efforts toagrees that it will:
(a) satisfytake, or and cause the satisfaction ofits Subsidiaries to take, all conditions precedent reasonable necessary actions, and cooperate with the other Parties, to be fulfilled give effect to the Arrangement and the other transactions contemplated by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the ArrangementAgreement;
(b) opposeuse all reasonable efforts to obtain all consents, lift exemptions, approvals, assignments, waivers and amendments to or rescind terminations of any injunction, restraining instruments considered necessary or other order, decree or ruling seeking desirable by the parties hereto and take such measures as may be appropriate to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation of the Arrangement fulfill its obligations hereunder and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and
(c) not take any action, or refrain from taking any action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation of the Arrangement or carry out the transactions contemplated by this Agreement.
(2) The Company covenants and agrees that, other than set out in Section 4.2(1) of the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicable.
(3) The Company shall promptly notify Canopy of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangementhereby;
(c) in the case of NMCCL, solicit proxies to be voted at the Meeting in favour of the Arrangement Resolution and prepare the Circular and other proxy-related materials, and any notice amendments, modifications or other communication from any Person supplements thereto as required by, and in compliance with, the Interim Order and applicable corporate and securities laws, and file and distribute the same to NMCCL Shareholders in a timely and expeditious manner in all jurisdictions where the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; orsame are required to be filed and distributed;
(d) any notice in the case of NMCCL, convene the Meeting as contemplated by the Interim Order and conduct such Meeting in accordance with the Interim Order and as otherwise required by law;
(e) use all reasonable efforts to cause each of the conditions precedent set forth in Article 5 hereof which are within its control to be satisfied on or before the Effective Date;
(f) in the case of NMCCL, subject to the approval of the Arrangement Resolution by the NMCCL Shareholders, as required by the Interim Order, submit the Arrangement to the Court and apply, together with each of the other communication from any Governmental Entity in connection with this Agreement Parties hereto, for the Final Order;
(and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy g) to the extent permitted by Law).applicable to it, carry out the terms of the Final Order;
(4h) The Purchaser in the case of NMCCL, following issuance of the Final Order, and Canopy shall promptly notify subject to the Company in writing of any notice satisfaction or other communication from any Person alleging that the consent waiver (or waiver, permit, exemption, order, approval, agreement, amendment or confirmationwhere permitted) of such Person is required the conditions precedent in connection Article 5 hereof, proceed to file the Articles of Arrangement, the Final Order and all related documents with this Agreement or the Arrangement.Director pursuant to subsection 192(6) of the CBCA;
(5i) Canopy covenants reserve and agrees with authorize for issuance the Company that prior to securities issuable by it, if any, as contemplated in the exchange Plan of all Canopy Shares held by CBG and Greenstar into Arrangement;
(j) in the Exchangeable Canopy Shares, without the prior written consent case of the CompanyNew Exchangeco, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective TimeDate, without make or cause to be made an application for approval from the prior written consent TSX of the Companylisting on the TSX of the New Exchangeable Shares; and
(k) in the case of Newmont, such consent not prior to the Effective Date, make or cause to be unreasonably withheld, conditioned or delayed, made an application for approval from the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition NYSE of the assets listing of the Purchaser or its Subsidiaries shares of Newmont Common Stock to be issued pursuant to the Arrangement as well as the shares of Newmont Common Stock to be issued upon the exchange of New Exchangeable Shares for shares of Newmont Common Stock in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of accordance with the transaction contemplated by this AgreementNew Exchangeable Share Provisions.
Appears in 1 contract
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)4.4, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of ArrangementAgreement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement within its control and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) the Company using commercially reasonable efforts to obtain, maintain or provide, as applicable, as soon as practicable following execution of this Agreement, all third party or other consents, waivers, notices, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained or provided under the Material Contracts or under the Authorizations and leases of the Company and its Subsidiaries in connection with the Arrangement or this Agreement, or (ii) required in order to maintain the Material Contracts and Authorizations and leases of the Company and its Subsidiaries in full force and effect following completion of the Arrangement, in each case, on terms that are reasonably satisfactory to the Purchaser;
(c) using commercially reasonable efforts to effect all necessary registrations, filings and submissions of information required by Governmental Entities from it related to the Arrangement or the transactions contemplated by this Agreement;
(d) using commercially reasonable efforts, in consultation with the other Party, to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement;
(e) using commercially reasonable efforts, in consultation with the other Party, to prepare and file a Notification and Report Form pursuant to the HSR Act with respect to the Arrangement and the other transactions contemplated by this Agreement as promptly as practicable, and in any event within twenty five (25) business days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as reasonably practicable; and
(cf) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants Purchaser shall use its commercially reasonable efforts to obtain and agrees thatmaintain in force the listing of its Subordinate, other than set out in Section 4.2(1) of Restricted and Limited Voting Shares on the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicableCSE.
(3) The Company shall promptly notify Canopy the Purchaser in writing of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person (including any Governmental Entity) alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person (or another Person) is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating terminating, may terminate or otherwise is or may be materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement Agreement, the Arrangement, any Authorization or Regulatory Approval (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser); and
(e) any filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the extent permitted by Law)Company, any of its Subsidiaries or the Company Assets.
(4) The Company will, in all material respects, conduct itself so as to keep the Purchaser and Canopy fully informed as to the material decisions required to be made or material actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of confidentiality obligation owed to a third party for which a waiver could not be obtained.
(5) The Purchaser shall promptly notify the Company in writing of of:
(a) any Purchaser Material Adverse Effect;
(b) any notice or other communication from any Person (including any Governmental Entity) alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person (or another Person) is required in connection with this Agreement or the Arrangement.;
(5c) Canopy covenants any notice or other communication from any Governmental Entity in connection with this Agreement or the Arrangement (and agrees with the Company that prior Purchaser shall contemporaneously provide a copy of any such written notice or communication to the exchange of all Canopy Shares held by CBG and Greenstar into Company); and
(d) any filings, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affect the Exchangeable Canopy Shares, without Purchaser in relation to this Agreement or the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent AgreementArrangement.
(6) Canopy covenants and agrees with The Company shall assist in effecting the Company that prior to resignations of each member of the exchange Board, each member of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent board of directors of each of the Company’s Subsidiaries and its other investments and its officers and the officers of each such Persons, in each case to the extent requested by the Purchaser and as at the Effective Time and causing any such consent not Persons to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held replaced by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Persons identified by the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to as of the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreement.
Appears in 1 contract
Samples: Arrangement Agreement
Covenants Regarding the Arrangement.
(1a) Subject to Section 4.2 and Section 4.4(4)4.4, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of ArrangementAgreement, including including:
(i) using commercially reasonable efforts to:
(a) to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(bii) using commercially reasonable efforts to obtain, as soon as practicable following execution of this Agreement, and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained under the Material Contracts in connection with the Arrangement or this Agreement, including the Asset Transfer Agreement, or (ii) required in order to maintain the Material Contracts in full force and effect following completion of the Arrangement, in each case, on terms that are reasonably satisfactory to the Purchaser;
(iii) using commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and
(civ) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2b) The Company covenants Purchaser shall obtain and agrees that, other than set out maintain in Section 4.2(1) of force the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time Stock Exchange Approval and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicablePurchaser Shareholder Consent.
(3c) The Company shall promptly notify Canopy the Purchaser of:
(ai) any Company Material Adverse Effect;
(bii) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(ciii) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or;
(div) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser); or
(v) any filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the extent permitted by Law)Company or any of its Subsidiaries.
(4d) The Company will, in all material respects, conduct itself so as to keep the Purchaser fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of confidentiality obligations owed to a third party for which a waiver could not be obtained.
(e) The Purchaser and Canopy shall promptly notify the Company in writing of of:
(i) any Purchaser Material Adverse Effect;
(ii) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.;
(5iii) Canopy covenants and agrees with the Company that prior any filing, actions, suits, claims, investigations or proceedings commenced or, to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Sharesits knowledge, without the prior written consent of the Companythreatened against, such consent not relating to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate involving or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of otherwise affecting the Purchaser or any of its Subsidiaries Subsidiaries; or
(iv) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a single transaction copy of any such written notice or a series of related transaction that could reasonably be expected communication to impede, prevent or materially delay completion of the transaction contemplated by this AgreementPurchaser).
Appears in 1 contract
Samples: Arrangement Agreement
Covenants Regarding the Arrangement.
(1) Subject to Section 4.2 and Section 4.4(4)4.4, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of ArrangementAgreement, including using commercially reasonable efforts toincluding:
(a) using commercially reasonable efforts to satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) using commercially reasonable efforts to obtain, as soon as practicable following execution of this Agreement, and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are (i) necessary to be obtained under the Material Contracts in connection with the Arrangement or this Agreement, (ii) required in order to maintain the Material Contracts in full force and effect following completion of the Arrangement, in each case, on terms that are reasonably satisfactory to the Purchaser, or (iii) otherwise contemplated by section 4.3(1)(b) of the Company Disclosure Letter;
(c) using commercially reasonable efforts to obtain, as soon as practicable following execution of this Agreement, and maintain, the consent of each of the holders of Company RSUs set forth in section 4.3(1)(c) of the Company Disclosure Letter (the "Consenting RSU Holders") to amend the vesting provisions contained in the Company RSU agreements between each Consenting RSU Holder and the Company so that their Company RSUs do not vest as a result of the change of control of the Company arising as a result of the Arrangement;
(d) using commercially reasonable efforts to oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and
(ce) not take taking any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the transactions contemplated by this Agreement.
(2) The Company covenants Purchaser shall use its commercially reasonable efforts to obtain and agrees that, other than set out maintain in Section 4.2(1) of force the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicableStock Exchange Approval.
(3) The Purchaser shall on or before the Effective Date reserve a sufficient number of Consideration Shares to be issued upon completion of the Arrangement and Purchaser Shares for issuance upon the exercise of Company Warrants from time to time.
(4) The Company shall promptly notify Canopy the Purchaser of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or;
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy the Purchaser); or
(e) any filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the extent permitted by Law)Company or any of its Subsidiaries.
(45) The Company will, in all material respects, conduct itself so as to keep the Purchaser fully informed as to the material decisions required to be made or material actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of confidentiality obligation owed to a third party for which the Company has used commercially reasonable efforts to obtain a waiver and such waiver could not be obtained.
(6) The Purchaser and Canopy shall promptly notify the Company in writing of of:
(a) any Purchaser Material Adverse Effect; or
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required Governmental Entity in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake contemporaneously provide a copy of any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale such written notice or other disposition of communication to the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this AgreementCompany).
Appears in 1 contract
Samples: Arrangement Agreement
Covenants Regarding the Arrangement. (1) Subject to Section 4.2 and Section 4.4(4)4.3, each of the Company, Company and the Purchaser and Canopy shall each (and each shall cause its respective affiliates to) use its commercially reasonable efforts to take, or cause to be taken, all actions and to do or cause to be done all things required or advisable under applicable Law to consummate and make effective, as soon as reasonably practicable, the transactions contemplated by this Agreement and the Plan of Arrangement, including using commercially reasonable efforts to:
(a) satisfy, or cause the satisfaction of, all conditions precedent to be fulfilled by it in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the implementation of the Arrangement;
(b) as soon as practicable following execution of this Agreement, obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are:
(i) necessary to be obtained under the Material Contracts or the Company Lease Documents, as applicable, in connection with the Arrangement or this Agreement; or
(ii) required in order to maintain the Material Contracts or Company Lease Documents, as applicable, in full force and effect following completion of the Arrangement; in each case, on terms reasonably satisfactory to the Purchaser;
(c) at any time following the date of this Agreement and, in any event, not later than as soon as practicable following the exercise or deemed exercise of the Purchaser Call Option, obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are:
(i) necessary to be obtained under the Material Contracts or the Company Lease Documents, as applicable, in connection with the Acquisition; or
(ii) required in order to maintain the Material Contracts or the Company Lease Documents, as applicable, in full force and effect following completion of the Acquisition, in each case, on terms reasonably satisfactory to the Purchaser;
(d) oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or delay or otherwise adversely affect the implementation consummation of the Arrangement or the Acquisition, as applicable, and defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging the Arrangement or this Agreement; and;
(ce) revise the High Street Operating Agreement as mutually agreed between the Company and the Purchaser in accordance with the principal terms set forth in Exhibit 1 hereto;
(f) revise the USCo2 Constating Documents as mutually agreed between the Company and the Purchaser in accordance with the principal terms set forth in Exhibit 1 hereto;
(g) revise the Tax Receivable Agreement as mutually agreed between the Company and the Purchaser in accordance with the principal terms set forth in Exhibit 2 hereto;
(h) not take taking any action, or refrain from taking any action, or permitting any action to be taken or not taken, which would reasonably be expected to prevent, materially delay or otherwise impede the implementation consummation of the Arrangement or the Acquisition, as applicable, or the transactions contemplated by this Agreement; and
(i) at any time following the date of this Agreement and, in any event, not later than following the exercise or deemed exercise of the Purchaser Call Option, satisfy, or cause the satisfaction of, all of the Acquisition Closing Conditions.
(2) The Company covenants and agrees that, other than set out in Section 4.2(1) of the Company Disclosure Letter, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, except with Canopy’s prior written consent, it shall not:
(a) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Floating Shares or other equity or voting interests or any options, stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Floating Shares (including, for greater certainty, Company Floating Options, Company Floating Share Units, Company Floating Warrants or any other equity based awards), other than the issuance of Company Floating Shares pursuant to the exercise or settlement (as applicable) of Company Floating Options, Company Floating Share Units or Company Floating Warrants that are outstanding as of the date of this Agreement in accordance with their terms; or
(b) take any action to amend or waive any performance, vesting or settlement criteria of, or accelerate vesting or settlement under, the Company Floating Securities or the Amended Equity Incentive Plan, as applicable.
(3) The Company shall promptly notify Canopy the Purchaser of:
(a) any Company Material Adverse Effect;
(b) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement;
(c) any notice or other communication from any Person to the effect that such Person is terminating or otherwise materially adversely modifying its relationship with the Company or any of its Subsidiaries as a result of this Agreement or the Arrangement; or
(d) any notice or other communication from any Governmental Entity in connection with this Agreement (and the Company shall contemporaneously provide a copy of any such written notice or communication to Canopy to the extent permitted by Law).
(4) The Purchaser and Canopy shall promptly notify the Company in writing of any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person is required in connection with this Agreement or the Arrangement.
(5) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Consent Agreement.
(6) Canopy covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, Canopy will not amend, modify, supplement, restate or terminate the Protection Agreement.
(7) The Purchaser covenants and agrees with the Company that prior to the exchange of all Canopy Shares held by CBG and Greenstar into the Exchangeable Canopy Shares, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser will not amend, modify, supplement, restate or terminate the Protection Agreement.
(8) The Purchaser covenants and agrees with the Company that prior to the Effective Time, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed, the Purchaser shall not undertake any further merger, amalgamation, statutory arrangement, share exchange, consolidation, business combination, recapitalization, sale or other disposition of the assets of the Purchaser or its Subsidiaries in a single transaction or a series of related transaction that could reasonably be expected to impede, prevent or materially delay completion of the transaction contemplated by this Agreement.
Appears in 1 contract
