Forbearances. During the period from the date of this Agreement to the Effective Time or earlier valid termination of this Agreement, except (i) as expressly contemplated by this Agreement (including as set forth in Section 5.2 of the Udemy Disclosure Letter or the Coursera Disclosure Letter, as applicable) or (ii) as required by applicable Law (but only following notice, to the extent legally permissible, to the other party), (A) with respect to each of the following clauses, other than clauses (i), (k) and (l) below, neither Udemy nor Coursera shall, and neither Udemy nor Coursera shall permit any of their respective Subsidiaries to, without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed) or (B) with respect to clauses (i), (k) and (l) below, Udemy shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Coursera (such consent not to be unreasonably withheld, conditioned or delayed): (a) incur, assume, guarantee or become liable for any Indebtedness, other than (i) intercompany Indebtedness among Udemy and/or wholly owned Udemy Subsidiaries or Coursera and/or wholly owned Coursera Subsidiaries, as applicable, (ii) guarantees by Udemy or any direct or indirect wholly owned Udemy Subsidiary of Indebtedness of Udemy or any other direct or indirect wholly owned Udemy Subsidiary, (iii) guarantees by Coursera or any direct or indirect wholly owned Coursera Subsidiary of Indebtedness of Coursera or any other direct or indirect wholly owned Coursera Subsidiary, (iv) other Indebtedness incurred by mutual written agreement of Udemy and Coursera, (v) Indebtedness of Udemy and/or Udemy Subsidiaries or Coursera and/or Coursera Subsidiaries, as applicable, of the type described in clause (i) of the definition of Indebtedness incurred in the ordinary course of business consistent with past practice and not for speculative purposes, (vi) indebtedness incurred in respect of letters of credit or other similar arrangements in the ordinary course of business consistent with past practice, (vii) indebtedness arising from customary cash management and treasury services and the honoring of checks, drafts or similar instruments against insufficient funds or from the endorsement of instruments for collection, in each case incurred in the ordinary course of business consistent with past practice, and (viii) Indebtedness of Udemy and/or Udemy Subsidiaries or Coursera and/or Coursera Subsidiaries, as applicable, in an aggregate principal amount not to exceed $5.0 million at any time outstanding, without taking into account any amounts permitted by clauses (i) through (vii) of this Section 5.2(a); provided, in the case of this clause (viii), that (1) the material terms and conditions of any such Indebtedness are customary and reasonable market terms, (2) such Indebtedness is prepayable or redeemable at any time (subject to customary notice requirements) without premium or penalty (other than customary reference rate breakage), (3) none of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby or to be consummated in connection herewith shall conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation under or any other material right of the lenders (or their agents or trustees) under or any loss of a material benefit of the Udemy or any Udemy Subsidiary, or Coursera or any Coursera Subsidiary, as applicable, under, or result in the creation of any Lien under such Indebtedness, or would be reasonably likely to require the preparation or delivery of separate financial statements of Udemy and/or any Udemy Subsidiary following the Closing and (4) such Indebtedness is not comprised of debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise); (b) adjust, split, combine or reclassify any capital stock;
Appears in 3 contracts
Sources: Merger Agreement (Udemy, Inc.), Merger Agreement (Coursera, Inc.), Merger Agreement (Coursera, Inc.)
Forbearances. During the period from the date of this Agreement to the Effective Time or earlier valid termination of this Agreement, except (i) as expressly contemplated by this Agreement (including as set forth in Section 5.2 of the Udemy CBC Disclosure Letter Schedule or the Coursera SCB Disclosure LetterSchedule, as applicable) expressly contemplated or (ii) permitted by this Agreement or as required by applicable Law (but only following notice, to the extent legally permissible, to the other party), (A) with respect to each of the following clauses, other than clauses (i), (k) and (l) belowLaw, neither Udemy CBC nor Coursera SCB shall, and neither Udemy CBC nor Coursera SCB shall permit any of their respective Subsidiaries to, without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed) or (B) with respect to clauses (i), (k) and (l) below, Udemy shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Coursera this Agreement (such consent not to be unreasonably withheld, conditioned or delayed):
(a) incur, assume, guarantee or become liable for any Indebtedness, other than (i) intercompany Indebtedness among Udemy and/or wholly federal funds borrowings and Federal Home Loan Bank borrowings, in each case with a maturity not in excess of six (6) months, (ii) deposits, (iii) issuances of letters of credit, (iv) purchases of federal funds, (v) sales of certificates of deposit and (vi) entry into repurchase agreements, in each case in the ordinary course of business, incur any indebtedness for borrowed money (other than indebtedness of CBC or any of its wholly-owned Udemy Subsidiaries to CBC or Coursera and/or wholly any of its wholly-owned Coursera Subsidiaries, on the one hand, or of SCB or any of its wholly-owned Subsidiaries to SCB or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity;
(i) adjust, split, combine or reclassify any shares of capital stock;
(ii) make, declare, pay or set a record date for any dividend, or any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable into or exercisable for any shares of its capital stock or other equity or voting securities, except, in each case, (A) dividends paid by any of the Subsidiaries of each of CBC and SCB to CBC or SCB or any of their wholly-owned Subsidiaries, respectively, and (B) the acceptance of shares of CBC Common Stock or SCB Common Stock, as the case may be, as payment for the exercise price of stock options or for withholding Taxes incurred in connection with the exercise of stock options or the vesting or settlement of equity compensation awards, in each case, in accordance with past practice and the terms of the applicable award agreements;
(iii) grant any stock options, stock appreciation rights, performance shares, restricted stock units, performance stock units, phantom stock units, restricted shares or other equity-based awards or interests, or grant any Person any right to acquire any shares of capital stock or other equity or voting securities of CBC or SCB or any of their respective Subsidiaries;
(iv) issue, sell, transfer, encumber or otherwise permit to become outstanding any shares of capital stock or voting securities or equity interests or securities convertible (whether currently convertible or convertible only after the passage of time of the occurrence of certain events) or exchangeable into, or exercisable for, any shares of its capital stock or other equity or voting securities, including any securities of CBC or SCB or their respective Subsidiaries, or any options, warrants, or other rights of any kind to acquire any shares of capital stock or other equity or voting securities, including any securities of CBC or SCB or their respective Subsidiaries, except pursuant to the exercise of stock options or the vesting or settlement of equity compensation awards outstanding as of the date hereof or granted after the date hereof to the extent authorized under this Agreement, in each case accordance with their terms;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a wholly-owned Subsidiary, or cancel, release or assign any indebtedness to any such Person or any claims held by any such Person, in each case other than in the ordinary course of business, or pursuant to contracts or agreements in force at the date of this Agreement;
(d) except for foreclosure or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith in the ordinary course of business, make any material investment in or acquisition of (whether by purchase of stock or securities, contributions to capital, property transfers, merger or consolidation, or formation of a joint venture or otherwise) any other Person or the property or assets of any other Person, in each case, other than a wholly-owned Subsidiary of CBC or SCB, as applicable;
(e) in each case except for transactions in the ordinary course of business, terminate, materially amend, or waive any material provision of, any CBC Contract or SCB Contract, as the case may be, or make any change in any instrument or agreement governing the terms of any of its securities, other than normal renewals of contracts without material adverse changes of terms with respect to CBC or SCB, or enter into any contract that would constitute a CBC Contract or SCB Contract, if it were in effect on the date of this Agreement;
(f) except as required under applicable Law or the terms of any CBC Benefit Plan or SCB Benefit Plan existing as of the date hereof, as applicable, (iii) guarantees by Udemy enter into, establish, adopt, amend or terminate any CBC Benefit Plan or SCB Benefit Plan, or any direct arrangement that would be a CBC Benefit Plan or indirect wholly owned Udemy Subsidiary of Indebtedness of Udemy or any a SCB Benefit Plan if in effect on the date hereof, other direct or indirect wholly owned Udemy Subsidiary, than with respect to broad-based welfare benefit plans (iiiother than severance) guarantees by Coursera or any direct or indirect wholly owned Coursera Subsidiary of Indebtedness of Coursera or any other direct or indirect wholly owned Coursera Subsidiary, (iv) other Indebtedness incurred by mutual written agreement of Udemy and Coursera, (v) Indebtedness of Udemy and/or Udemy Subsidiaries or Coursera and/or Coursera Subsidiaries, as applicable, of the type described in clause (i) of the definition of Indebtedness incurred in the ordinary course of business consistent with past practice and as would not reasonably be expected to materially increase the cost of benefits under any such CBC Benefit Plan or SCB Benefit Plan, as the case may be, (ii) increase the compensation or benefits payable to any current or former employee, director or individual consultant, other than increases for speculative purposescurrent employees with an annual base salary below $150,000 in connection with a promotion (permitted hereunder) or change in responsibilities, in each case, in the ordinary course of business consistent with past practice and to a level consistent with similarly situated peer employees, (iii) accelerate the vesting of any equity-based awards or other compensation or benefits, (iv) enter into any new, or amend any existing, employment, severance, change in control, retention, collective bargaining agreement or similar agreement or arrangement; provided, however, that the parties may enter into offer letters with new hires in the ordinary course of business consistent with past practice that do not provide for enhanced or change in control severance, (v) fund any rabbi trust or similar arrangement, or in any other way secure the payment of compensation or benefits under any CBC Benefit Plan or SCB Benefit Plan, as the case may be, or (vi) indebtedness incurred hire or promote any employee with an annual base salary equal to or in respect excess of letters $150,000, or significantly change the responsibilities assigned to any such employee;
(g) settle any material claim, suit, action or proceeding, except involving solely monetary remedies in an amount and for consideration not in excess of credit $25,000 individually or $50,000 in the aggregate and that would not impose any material restriction on, or create any adverse precedent that would be material to, the business of it or its Subsidiaries or the Surviving Corporation or its Subsidiaries;
(h) take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(i) amend its articles of incorporation, its bylaws or comparable governing documents of its Significant Subsidiaries;
(j) materially restructure or materially change its investment securities, derivatives, wholesale funding of bank owned life insurance portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(k) implement or adopt any change in its accounting principles, practices or methods, other similar arrangements than as may be required by GAAP;
(l) enter into any new line of business or, other than in the ordinary course of business consistent with past practice, (vii) indebtedness arising from customary cash change in any material respect its lending, investment, underwriting, risk and asset liability management and treasury services other banking and operating, hedging, securitization and servicing policies (including any change in the honoring of checks, drafts maximum ratio or similar instruments against insufficient funds limits as a percentage of its capital exposure applicable with respect to its loan portfolio or from any segment thereof), except as required by applicable Law, regulation or policies imposed by, or recommendation of, any Governmental Entity;
(m) merge or consolidate itself or any of its Significant Subsidiaries with any other Person, or restructure, reorganize or completely or partially liquidate or dissolve it or any of its Significant Subsidiaries;
(n) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, or settle any material Tax claim, audit, assessment or dispute or surrender any material right to claim a refund of Taxes;
(o) other than in prior consultation with the endorsement other party to this Agreement, except for loans or extensions of instruments for collectioncredit approved and/or committed as of the date of this Agreement, in each case incurred in the ordinary course of business consistent with past practice, and (viii) Indebtedness of Udemy and/or Udemy Subsidiaries or Coursera and/or Coursera Subsidiaries, as applicable, in an aggregate principal amount not to exceed $5.0 million at any time outstanding, without taking into account any amounts permitted by clauses (i) through make any loan greater than $7,500,000, make any sponsored finance loan greater than $3,000,000, purchase a participation in any loan or pool of loans, or renew any loan greater than $7,500,000, or (viiii) renew for more than 12 months any loans greater than $1,000,000 rated “special mention” or worse; or
(p) agree to take, make any commitment to take, or adopt any resolutions of its board of directors or similar governing body in support of, any of the actions prohibited by this Section 5.2(a); provided, in the case of this clause (viii), that (1) the material terms and conditions of any such Indebtedness are customary and reasonable market terms, (2) such Indebtedness is prepayable or redeemable at any time (subject to customary notice requirements) without premium or penalty (other than customary reference rate breakage), (3) none of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby or to be consummated in connection herewith shall conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation under or any other material right of the lenders (or their agents or trustees) under or any loss of a material benefit of the Udemy or any Udemy Subsidiary, or Coursera or any Coursera Subsidiary, as applicable, under, or result in the creation of any Lien under such Indebtedness, or would be reasonably likely to require the preparation or delivery of separate financial statements of Udemy and/or any Udemy Subsidiary following the Closing and (4) such Indebtedness is not comprised of debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise);
(b) adjust, split, combine or reclassify any capital stock;4.02.
Appears in 3 contracts
Sources: Merger Agreement (Southern California Bancorp \ CA), Merger Agreement (California BanCorp), Merger Agreement (Southern California Bancorp \ CA)
Forbearances. During the period from the date of this Agreement to the Effective Time or earlier valid termination of this Agreement, except (i) as expressly contemplated by this Agreement (including as set forth in Section 5.2 of the Udemy South State Disclosure Letter Schedule or the Coursera CenterState Disclosure LetterSchedule, as applicable) expressly contemplated or (ii) permitted by this Agreement or as required by applicable Law (but only following notice, to the extent legally permissible, to the other party), (A) with respect to each of the following clauses, other than clauses (i), (k) and (l) belowlaw, neither Udemy South State nor Coursera CenterState shall, and neither Udemy South State nor Coursera CenterState shall permit any of their respective Subsidiaries to, without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed) or (B) with respect to clauses (i), (k) and (l) below, Udemy shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Coursera this Agreement (such consent not to be unreasonably withheld, conditioned or delayed):
(a) incur(i) incur any indebtedness for borrowed money in excess of $25,000,000, assume, guarantee or become liable for any Indebtedness, (A) other than (iI) intercompany Indebtedness among Udemy and/or wholly owned Udemy Subsidiaries or Coursera and/or wholly owned Coursera Subsidiariesfederal funds borrowings and Federal Home Loan Bank borrowings, as applicable, in each case with a maturity not in excess of six (ii6) guarantees by Udemy or any direct or indirect wholly owned Udemy Subsidiary of Indebtedness of Udemy or any other direct or indirect wholly owned Udemy Subsidiary, (iii) guarantees by Coursera or any direct or indirect wholly owned Coursera Subsidiary of Indebtedness of Coursera or any other direct or indirect wholly owned Coursera Subsidiary, (iv) other Indebtedness incurred by mutual written agreement of Udemy months and Coursera, (v) Indebtedness of Udemy and/or Udemy Subsidiaries or Coursera and/or Coursera Subsidiaries, as applicable, of the type described in clause (i) of the definition of Indebtedness incurred in the ordinary course of business consistent with past practice and not for speculative purposes, (vi) indebtedness incurred in respect of letters of credit or other similar arrangements in the ordinary course of business consistent with past practice, (viiII) indebtedness arising from customary cash management and treasury services and the honoring of checks, drafts or similar instruments against insufficient funds or from the endorsement of instruments for collection, in each case incurred deposits in the ordinary course of business consistent with past practicepractice and (III) indebtedness of CenterState or any of its wholly owned Subsidiaries to CenterState or any of its wholly owned Subsidiaries, on the one hand, or of South State or any of its wholly owned Subsidiaries to South State or any of its wholly owned Subsidiaries, on the other hand, and (viiiB) Indebtedness of Udemy and/or Udemy Subsidiaries or Coursera and/or Coursera Subsidiaries, as applicable, in an aggregate principal amount not to exceed $5.0 million at any time outstanding, without taking into account any amounts permitted by clauses (i) through (vii) of this Section 5.2(a); provided, in the case of this clause (viii), provided that (1I) the material terms and conditions of any such Indebtedness are indebtedness is on customary and reasonable market terms, (2II) such Indebtedness indebtedness is prepayable or redeemable at any time (subject to customary notice requirements) without premium or penalty (other than customary reference rate breakage)penalty, (3III) none of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby or to be consummated in connection herewith shall conflict with, or result in any violation of or default (with or without notice or lapse of time, time or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation under or any other material right of the lenders (or their agents or trustees) under under, or any loss of a material benefit of the Udemy CenterState, South State or any Udemy Subsidiary, or Coursera or any Coursera Subsidiary, as applicable, of their respective Subsidiaries under, or result in the creation of any Lien upon any of the assets of CenterState, South State or any of their respective Subsidiaries under such Indebtednessindebtedness, or would reasonably be reasonably likely expected to require the preparation or delivery of separate financial statements of Udemy and/or any Udemy Subsidiary following CenterState, South State, the Closing Surviving Entity or their respective Subsidiaries and (4IV) such Indebtedness indebtedness is not comprised of debt securities or calls, options, warrants or other rights to acquire any debt securities securities, or (directlyii) assume, contingently guarantee, endorse or otherwise)otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity;
(b) (i) adjust, split, combine or reclassify any capital stock;
Appears in 3 contracts
Sources: Merger Agreement (CenterState Bank Corp), Merger Agreement (CenterState Bank Corp), Merger Agreement (SOUTH STATE Corp)
Forbearances. During Except (i) for the acquisition of parcels of land where assisted living facilities can be developed that are subject to Options to Purchase as of the date of this Agreement (which acquisition(s) shall have been consented to in writing by ALC (which consent shall not be unreasonably withheld, conditioned or delayed)) or that are subject to Purchase Agreements as of the date of this Agreement, (ii) for the execution and delivery by HCI of Purchase Agreements with respect to additional parcels of land on which assisted living facilities can be developed (the execution and delivery of which shall have been consented to in writing by ALC (which consent shall not be unreasonably withheld, conditioned or delayed)), (iii) for the execution and delivery by HCI of Options to Purchase with respect to additional parcels of land on which assisted living facilities can be developed, and (iv) for the execution and delivery of the LTC Commitment (as defined in Section 7.1(e) hereof), during the period from the date of this Agreement to the Effective Time or earlier valid termination of this Agreementand, except (i) as expressly contemplated or permitted by this Agreement (including as set forth in Section 5.2 of the Udemy Disclosure Letter or the Coursera Disclosure Letter, as applicable) or (ii) as required by applicable Law (but only following noticelaw, to the extent legally permissiblerule or regulation, to the other party), (A) with respect to each of the following clauses, other than clauses (i), (k) and (l) below, neither Udemy nor Coursera shall, and neither Udemy nor Coursera HCI shall permit any of their respective Subsidiaries to, without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed) or (B) with respect to clauses (i), (k) and (l) below, Udemy shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Coursera (such consent not to be unreasonably withheld, conditioned or delayed)::
(a) incuradjust, assumesplit, guarantee combine or become liable reclassify any capital stock; make, declare or pay any dividend or make any other distribution on (other than a $2.50 per share distribution by HCI payable in the form of cash, cancellation of indebtedness (including interest thereon) or issuance of indebtedness), or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any Indebtednessshares of its capital stock, voting securities or other ownership interests, or grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock, voting securities or other ownership interests (except for the issuance of employee stock options and restricted stock consistent with past practices); or repurchase, redeem or otherwise acquire any shares of its capital stock or any capital stock, voting securities or ownership interests in any Subsidiary; or issue any additional shares of capital stock, voting securities or other ownership interests;
(b) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity other than (i) intercompany Indebtedness among Udemy and/or wholly owned Udemy Subsidiaries or Coursera and/or wholly owned Coursera Subsidiaries, as applicable, (ii) guarantees by Udemy or any a direct or indirect wholly owned Udemy Subsidiary of Indebtedness of Udemy Subsidiary, or cancel, release or assign any indebtedness to any such person or any other direct or indirect wholly owned Udemy Subsidiaryclaims held by any such person, (iii) guarantees by Coursera or any direct or indirect wholly owned Coursera Subsidiary of Indebtedness of Coursera or any other direct or indirect wholly owned Coursera Subsidiaryin each case that is material to such party, (iv) other Indebtedness incurred by mutual written agreement of Udemy and Coursera, (v) Indebtedness of Udemy and/or Udemy Subsidiaries or Coursera and/or Coursera Subsidiaries, as applicable, of the type described in clause except (i) of the definition of Indebtedness incurred in the ordinary course of business consistent with past practice and not for speculative purposes, (vi) indebtedness incurred in respect of letters of credit or other similar arrangements in the ordinary course of business consistent with past practice, (viiii) pursuant to contracts or agreements in force at the date of this Agreement in accordance with the terms of such contract or agreement as in effect on the date of this Agreement, (iii) pursuant to plans disclosed in writing prior to the execution of this Agreement to the other party or (iv) for the cancellation of approximately $5.0 million of indebtedness arising from customary cash management and treasury services and the honoring (plus interest thereon) owing under certain outstanding promissory notes issued by stockholders of checks, drafts or similar instruments against insufficient funds or from the endorsement of instruments HCI;
(c) except for collection, in each case incurred transactions in the ordinary course of business consistent with past practice, and make any material acquisition or investment either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned Subsidiary thereof;
(viiid) Indebtedness except for transactions in the ordinary course of Udemy and/or Udemy Subsidiaries business consistent with past practice, enter into or Coursera and/or Coursera Subsidiariesterminate any contract or agreement, as applicableor make any change in any of its leases or contracts, in an aggregate principal amount each case that is material to such party, other than renewals of contracts and leases without materially adverse changes of terms thereof;
(e) incur any liability for indebtedness, guarantee the obligations of others, indemnify others or, except in the ordinary course of business, incur any other liability;
(f) increase in any material respect the compensation or fringe benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to exceed $5.0 million any such employees other than in the ordinary course of business consistent with past practice, or become a party to, amend or commit it itself to any material pension, retirement, profit- sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee or accelerate the vesting of any stock options or other stock-based compensation;
(g) settle any claim, action or proceeding involving money damages which is material to HCI, except in the ordinary course of business consistent with past practice;
(h) take any action that would prevent or impede the Merger from qualifying for the purchase method of accounting;
(i) amend its Articles of Incorporation, Bylaws or similar governing documents in any case in a manner that would materially and adversely effect any party's ability to consummate the Merger or the economic benefits of the Merger to either party;
(j) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time outstandingprior to the Effective Time, without taking into account or in any amounts permitted by clauses (i) through (vii) of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Section 5.2(a); providedAgreement, except, in the case of this clause (viii), that (1) the material terms and conditions of any such Indebtedness are customary and reasonable market terms, (2) such Indebtedness is prepayable or redeemable at any time (subject to customary notice requirements) without premium or penalty (other than customary reference rate breakage), (3) none of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby or to be consummated in connection herewith shall conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation under or any other material right of the lenders (or their agents or trustees) under or any loss of a material benefit of the Udemy or any Udemy Subsidiary, or Coursera or any Coursera Subsidiaryevery case, as applicable, under, or result in the creation of any Lien under such Indebtedness, or would may be reasonably likely to require the preparation or delivery of separate financial statements of Udemy and/or any Udemy Subsidiary following the Closing and (4) such Indebtedness is not comprised of debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise)required by applicable law;
(bk) adjustexcept for capital expenditures approved by LTC Development, splitInc. (which approval shall not be unreasonably withheld), combine or reclassify incur any capital stockexpenditures in excess of $5,000 individually or $25,000 in the aggregate;
(l) make any change in accounting methods, principles or practices, except as required by a change in GAAP; or
(m) agree to, or make any commitment to, take any of the actions prohibited by this Section 5.
Appears in 3 contracts
Sources: Merger Agreement (Assisted Living Concepts Inc), Merger Agreement (LTC Properties Inc), Merger Agreement (LTC Properties Inc)
Forbearances. During the period from the date of this Agreement to the Effective Time or earlier valid termination of this Agreement(a) Seller covenants and agrees that, except as (iw) as expressly contemplated by this Agreement (including as set forth in Section 5.2 5.1(a) of the Udemy Seller Disclosure Letter or the Coursera Disclosure Letter, as applicable) or (ii) as required by applicable Law (but only following notice, to the extent legally permissible, to the other party)Schedule, (Ax) with respect to each of the following clauses, other than clauses Purchaser may otherwise consent (i), (k) and (l) below, neither Udemy nor Coursera shall, and neither Udemy nor Coursera which consent shall permit any of their respective Subsidiaries to, without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed), (y) expressly permitted by this Agreement, or (z) required by applicable Laws, Governmental Orders or Self-Regulatory Organization Orders, from the date of this Agreement until the Closing, it will cause the Company and the Company’s Subsidiaries to (I) conduct their respective businesses in the ordinary and usual course, (II) use their respective commercially reasonable efforts to preserve their respective business organizations intact, (III) use their respective commercially reasonable efforts to maintain their respective Governmental Authorizations and Self-Regulatory Organization Authorizations and existing relations with their respective customers, suppliers, creditors, employees and independent contractors, and (IV) maintain their respective books and records in the ordinary course. Without limiting the generality of the foregoing, from the date of this Agreement until the Closing, except as (A) set forth in Section 5.1(a) of the Seller Disclosure Schedule, (B) with respect to clauses Purchaser may otherwise consent, (C) expressly permitted by this Agreement, or (D) required by applicable Laws, Governmental Orders or Self-Regulatory Organization Orders, Seller will cause each of the Company and the Company’s Subsidiaries not to:
(i) adopt or propose any change in its Organizational Documents;
(ii) merge or consolidate itself with any other Person, or restructure, reorganize or completely or partially liquidate itself;
(iii) issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, (x) any shares of its capital stock (other than the issuance of shares of capital stock by a wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company), (ky) and (l) below, Udemy shall not, and shall not permit any securities convertible into or exchangeable or exercisable for any shares of its Subsidiaries to, without the prior written consent of Coursera (such consent not to be unreasonably withheld, conditioned or delayed):
(a) incur, assume, guarantee or become liable for any Indebtedness, other than (i) intercompany Indebtedness among Udemy and/or wholly owned Udemy Subsidiaries or Coursera and/or wholly owned Coursera Subsidiaries, as applicable, (ii) guarantees by Udemy or any direct or indirect wholly owned Udemy Subsidiary of Indebtedness of Udemy or any other direct or indirect wholly owned Udemy Subsidiary, (iii) guarantees by Coursera or any direct or indirect wholly owned Coursera Subsidiary of Indebtedness of Coursera or any other direct or indirect wholly owned Coursera Subsidiary, (iv) other Indebtedness incurred by mutual written agreement of Udemy and Coursera, (v) Indebtedness of Udemy and/or Udemy Subsidiaries or Coursera and/or Coursera Subsidiaries, as applicable, of the type described in clause (i) of the definition of Indebtedness incurred in the ordinary course of business consistent with past practice and not for speculative purposes, (vi) indebtedness incurred in respect of letters of credit or other similar arrangements in the ordinary course of business consistent with past practice, (vii) indebtedness arising from customary cash management and treasury services and the honoring of checks, drafts or similar instruments against insufficient funds or from the endorsement of instruments for collection, in each case incurred in the ordinary course of business consistent with past practice, and (viii) Indebtedness of Udemy and/or Udemy Subsidiaries or Coursera and/or Coursera Subsidiaries, as applicable, in an aggregate principal amount not to exceed $5.0 million at any time outstanding, without taking into account any amounts permitted by clauses (i) through (vii) of this Section 5.2(a); provided, in the case of this clause (viii), that (1) the material terms and conditions of any such Indebtedness are customary and reasonable market terms, (2) such Indebtedness is prepayable or redeemable at any time (subject to customary notice requirements) without premium or penalty (other than customary reference rate breakage), (3) none of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby or to be consummated in connection herewith shall conflict withcapital stock, or result in (z) any violation of or default (with or without notice or lapse of timeoptions, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation under or any other material right of the lenders (or their agents or trustees) under or any loss of a material benefit of the Udemy or any Udemy Subsidiary, or Coursera or any Coursera Subsidiary, as applicable, under, or result in the creation of any Lien under such Indebtedness, or would be reasonably likely to require the preparation or delivery of separate financial statements of Udemy and/or any Udemy Subsidiary following the Closing and (4) such Indebtedness is not comprised of debt securities or calls, options, warrants or other rights to acquire any debt securities shares of its capital stock or such convertible, exchangeable or exercisable securities;
(directlyiv) declare, contingently set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to its capital stock (except for dividends or other distributions paid by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company);
(v) incur any Indebtedness or guarantee such Indebtedness of another Person (other than the Company or any of its wholly owned Subsidiaries), or issue or sell any debt securities or warrants or other rights to acquire its debt security, except in each case for any short-term indebtedness;
(vi) make any loans or advances or capital contributions to, or investments in, any other Person (other than (x) loans or advances or capital contributions to the Company or any direct or indirect wholly owned Subsidiary of the Company, (y) loans to the Company’s or any of its Subsidiaries’ newly recruited financial advisors and (z) any margin loans or stock loans activities of the Company or any of its Subsidiaries) in excess of $1 million in the aggregate;
(vii) create or incur any material Lien (other than Permitted Liens) on its properties or assets (or, in the case of an involuntary Lien (other than Permitted Liens) of which Seller has knowledge, fail to initiate actions to have such Lien removed as promptly as practicable);
(viii) acquire any business or assets from any other Person, other than (x) acquisition of such business or assets for consideration that is individually not in excess of $500,000, or in the aggregate, not in excess of $1 million, during any twelve (12) month period, (y) acquisition of securities in the Company Ordinary Course of Business in connection with the fixed income operation and stock loans business of the Company or any of its Subsidiaries, and (z) acquisitions by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted;
(ix) except as set forth in the capital budgets set forth in Section 5.1(a)(ix) of the Seller Disclosure Schedule, make or authorize any capital expenditure in excess of $1 million in the aggregate during any twelve (12)-month period;
(x) transfer, sell, lease, license, surrender, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets (including material Company Owned Intellectual Property and capital stock of any of its Subsidiaries) or material product lines or businesses, except for sales or other dispositions of, abandonment of, cancellations of and letting lapse or expire obsolete assets and except for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $1 million in the aggregate;
(xi) enter into, amend, modify, renew, extend or terminate any Company Material Contract or any Company Lease in any material respect, or cancel, modify or waive any material debts or claims or waive any material rights held by it thereunder, except for such entry into, amendment, modification, renewal, extension, termination, cancellation or waiver (A) under any Company Material Contract or any Company Lease resulting in, or obligating the Company or any of its Subsidiaries to make, payments by the Company or any of its Subsidiaries of no more than $50,000 individually or $250,000 in the aggregate and (B) that would not create any binding obligation on the Company or any of its Subsidiaries to any third party for more than twelve (12) months after the Closing Date; provided, however, that Purchaser agrees that it shall discuss in good faith with Seller as promptly as practicable after the date hereof any proposed entry into, amendment, modification, renewal, extension or termination of any Company Material Contract or any Company Lease set forth in Section 5.1(a)(xi) of the Seller Disclosure Schedule, and in the event no solution reasonably acceptable to both Purchaser and Seller with respect to such proposed entry into, amendment, modification, renewal, extension or termination has been reached within thirty (30) days after the commencement of such discussions, Seller shall not (and shall cause the Company and its Subsidiaries not to) enter into, amend, modify, renew, extend or terminate any Contract set forth in Section 5.1(a)(xi) of the Seller Disclosure Schedule without Purchaser’s consent (which consent shall not be unreasonably withheld, conditioned or delayed);
(xii) except as otherwise required in connection with a Final Tax Determination of any Pending Federal Tax Matter (which exception shall apply only to the extent that any action to be taken by Seller or Parent in reliance thereon would have no effect on the Company, any of its Subsidiaries or Purchaser for any Post-Closing Tax Period), make, change or revoke any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any Tax Return, agree to an extension of the statute of limitations with respect to the assessment or collection of Taxes, make or surrender any claim for a material refund of Taxes, or settle or compromise any Tax liability (and neither Parent nor Seller shall take any of the foregoing actions with respect to any consolidated, combined, unitary or affiliated group of which the Company or any Subsidiary is a member), in each case, if such action would have the effect of increasing a Tax liability or reducing a Tax Asset (including, for the avoidance of doubt, a deferred Tax liability or deferred Tax Asset, as the case may be) of the Company or any of its Subsidiaries, in each case, by an amount that is material;
(xiii) make any changes with respect to its financial or regulatory accounting principles or procedures (other than to the extent required by applicable Law or changes in GAAP or applicable regulatory accounting requirements);
(xiv) settle or compromise any Action, other than as does not involve either (i) the admission of wrongdoing, the institution of mandated new procedures or other business conduct or the imposition of equitable or similar relief or (ii) payments in excess of $1.5 million with respect to any individual Action and $2.5 million in the aggregate, each during any twelve (12)-month period;
(xv) except (w) as contemplated by this Agreement or the Transition Services Agreement, (x) as required under the Benefit Plans in effect as of the date of this Agreement, (y) as set forth in Section 5.1(a)(xv) of the Seller Disclosure Schedule, or (z) as required by applicable Law, (A) grant, pay or provide for any severance, change of control or termination payments or benefits to any of its directors, officers or employees (other than inclusion in the rank-and-file severance plan of newly hired non-officer employees), (B) increase the salary, bonus, bonus opportunity, pension, welfare or severance benefits of any of its directors, officers or employees, except for (1) increases in annualized base salary or hourly wage rate of no more than 5% of such employee’s annualized base salary or hourly wage rate as in effect on the date hereof and (2) increases in short-term incentive opportunities attributable solely to such increases in annualized base salary or hourly wage rate (provided, however, that changes to the annualized total compensation of any employee shall be permitted to exceed 5% of such employee’s annual base salary or hourly wage rate in the event that such employee is replacing a departing incumbent employee, but only to the extent that the amount of each element of compensation for such employee does not exceed the corresponding amount of each element of compensation of the departing incumbent employee), or (C) establish, adopt, enter into, amend or terminate any Company Benefit Plan (or any plan, agreement or arrangement that would be a Company Benefit Plan if in effect as of the date hereof) or amend the terms of any outstanding equity-based awards, except as required by applicable Law, as required by the Benefit Plans in effect as of the date hereof, or to effectuate any change allowed under this Section 5.1(a)(xv);
(xvi) (A) transfer Company Employees from the Company or any of its Subsidiaries to other operations of Seller or its Affiliates or transfer employees of Seller or its Affiliates (other than the Company and its Subsidiaries) to the Company or any of its Subsidiaries from Seller’s or its Affiliates’ other operations or (B) solicit any Company Employee for employment, offer employment to any Company Employee or induce any Company Employee to seek employment (currently or in the future) with Seller’s or its Affiliates’ other operations, including by allowing a Company Employee to “post” on any internal job boards;
(xvii) manage payables, receivables (including Intercompany Payables and Intercompany Receivables), current assets, current liabilities or working capital in any manner other than in the Company Ordinary Course of Business, except for those matters in connection with any settlement or compromise of any Action permitted by Section 5.1(a)(xiv);
(xviii) enter into any new line of business outside of its existing business segments;
(xix) fail to use reasonable best efforts to maintain insurance coverage substantially similar in all material respects to the insurance coverage maintained by the Company and its Subsidiaries as of the date hereof; or
(xx) propose to, authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing.
(b) adjustFrom the date of this Agreement until the Closing, splitexcept as (A) set forth in Section 5.1(b) of the Seller Disclosure Schedule, combine (B) Purchaser may otherwise consent, (C) expressly permitted by this Agreement, or reclassify (D) required by applicable Laws, Governmental Orders or Self-Regulatory Organization Orders, Parent will not and will cause its Subsidiaries not to:
(i) materially increase the allocation of floor space or other charges to the Company and its Subsidiaries in respect of any capital stockoffice that the Company or any of its Subsidiaries shares with Parent or any of its Affiliates (other than the Company and its Subsidiaries) (a “Shared Office”), or use any location as a Shared Office that is not a Shared Office as of the date hereof;
(ii) enter into, amend, modify, renew, extend or terminate any lease relating to the Company Leased Real Property or any Shared Office in any material respect; provided, however, that Parent or the Company or any of the Company’s Subsidiaries may extend a lease for a Shared Office to which none of the Company or its Subsidiaries is the tenant or guarantor, so long as the Company and its Subsidiaries are not liable for any allocation or other charges beyond the termination date of such lease prior to its extension; or
(iii) other than in the Company Ordinary Course of Business, call or otherwise rescind any loan to any of the Company’s or its Subsidiaries’ financial advisors except as may be required by the terms of such loans in the event of non-payment by such financial advisor.
(c) Purchaser shall not knowingly take or permit any of its Affiliates to take or omit to take or permit any of its Affiliates to omit to take any action (i) that would, or is reasonably likely to, prevent or materially delay the consummation of, or materially impair Purchaser’s ability to consummate, the transactions contemplated by this Agreement or the Transition Services Agreement, or (ii) that is intended or is reasonably likely to result in any of the conditions set forth in Article VII not being satisfied, except, in each case, as may be required by applicable Law, Governmental Order or Self-Regulatory Organization Order.
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