Short Sales and Confidentiality Prior To The Date Hereof Other than consummating the transactions contemplated hereunder, such Purchaser has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing from the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser's assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction).
Company Lock-Up (i) The Company will not, without the prior written consent of the Representative, for a period of 180 days from the date of this Agreement (the “Lock-Up Period”), (i) issue, offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common Stock, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the shares of Common Stock or any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of shares of Common Stock or such other securities, in cash or otherwise, except to the Underwriters pursuant to this Agreement. The Company agrees not to accelerate the vesting of any option or warrant or the lapse of any repurchase right prior to the expiration of the Lock-Up Period.
(ii) The restrictions contained in Section 3(n)(i) hereof shall not apply to: (A) the Offered Securities, (B) the Underlying Shares, (C) any shares of Common Stock issued pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding as of the Applicable Time and as described in the Registration Statement, the Disclosure Package or the Prospectus, (D) any shares of Common Stock or options to purchase any shares of Common Stock or other any shares of Common Stock based award issued or granted pursuant to the Company’s stock incentive plans, stock purchase plan, stock ownership plan or dividend reinvestment plan in effect at the Applicable Time and as described in the Registration Statement, the Disclosure Package or the Prospectus, and (E) shares of Common Stock or other securities issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of not less than a majority or controlling portion of the equity of another entity; provided that (x) the aggregate number of shares of Common Stock issued pursuant to clause (E) shall not exceed five percent (5%) of the total number of outstanding shares of Common Stock immediately following the issuance and sale of the Offered Securities pursuant hereto and (y) the recipient of any such shares of Common Stock or other securities issued or granted pursuant to clause (E) during the Lock-Up Period shall enter into an agreement substantially in the form of Exhibit B hereto.
Confidentiality/Privacy FTIS shall keep the Confidential Information (as defined in Section 16(a) below) of the Investment Company in confidence and will not use or disclose or allow access to or use of such Confidential Information except (A) as appropriate in connection with activities contemplated by this Agreement; (B) as required pursuant to a court order, subpoena, governmental or regulatory or self-regulatory authority or agency, law, regulation, or binding discovery request in pending litigation (provided the receiving party will provide the other party written notice of such requirement, to the extent such notice is permitted, and subject to proper jurisdiction, if applicable); (C) as requested by a governmental, regulatory or self-regulatory authority or agency in connection with an inquiry, examination, audit or other review; or (D) the information or data is relevant and material to any claim or cause of action between the parties or the defense of any claim or cause of action asserted against FTIS.
Reporting Company/Shell Company The Company is a publicly-held company subject to reporting obligations pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “1934 Act”) and has a class of Common Stock registered pursuant to Section 12(g) of the 1934 Act. Pursuant to the provisions of the 1934 Act, the Company has timely filed all reports and other materials required to be filed thereunder with the Commission during the preceding twelve months. As of the Closing Date, the Company is not a “shell company” but is a “former shell company” as those terms are employed in Rule 144 under the 1933 Act.
Investment Management If and to the extent requested by the Advisor, the Sub-Advisor shall, subject to the supervision of the Advisor, manage all or a portion of the investments of the Portfolio in accordance with the investment objective, policies and limitations provided in the Portfolio's Prospectus or other governing instruments, as amended from time to time, the Investment Company Act of 1940 (the "1940 Act") and rules thereunder, as amended from time to time, and such other limitations as the Trust or Advisor may impose with respect to the Portfolio by notice to the Sub-Advisor. With respect to the portion of the investments of the Portfolio under its management, the Sub-Advisor is authorized to make investment decisions on behalf of the Portfolio with regard to any stock, bond, other security or investment instrument, and to place orders for the purchase and sale of such securities through such broker-dealers as the Sub-Advisor may select. The Sub-Advisor may also be authorized, but only to the extent such duties are delegated in writing by the Advisor, to provide additional investment management services to the Portfolio, including but not limited to services such as managing foreign currency investments, purchasing and selling or writing futures and options contracts, borrowing money or lending securities on behalf of the Portfolio. All investment management and any other activities of the Sub-Advisor shall at all times be subject to the control and direction of the Advisor and the Trust's Board of Trustees.
Operations Prior to the Closing Date (a) From the ------------------------------------ date hereof through the Closing Date, Parent shall cause the Companies to operate and carry on the Business in the ordinary course in accordance with past practice and in compliance with all applicable Requirements of Law, including Environmental Laws. Consistent with the foregoing, Parent shall cause each of the Companies to use its reasonable efforts consistent with good business practice to (i) maintain the business organization of the Companies intact, (ii) keep available the services of any key employees of the Companies and (iii) preserve the goodwill and beneficial relationships of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Companies.
(b) Notwithstanding Section 7.4(a), except as set forth in Schedule -------------- -------- 7.4, except as contemplated by this Agreement or except with the express written --- approval of Buyer (which, in the case of clauses (ii), (iii), (vi), (ix), (x) and (xviii), Buyer agrees shall not be unreasonably withheld or delayed), Parent shall cause each of the Companies not to:
(i) make any material change in the Business or its operations, except such changes as may be required to comply with any applicable Requirements of Law;
(ii) make any capital expenditure or enter into any contract or commitment therefor, other than in the ordinary course of the Business, which is in excess of $50,000;
(iii) other than in the ordinary course of the Business, enter into any contract, agreement, undertaking or commitment which would have been required to be set forth in Schedule 5.14(a) or 5.14(b) if in effect on the ---------------- ------- date hereof or amend any Business Agreement in any material respect;
(iv) enter into any contract that contains a "change of control" provision that would give the other party a right to terminate such contract upon the consummation of the transactions contemplated hereby or under which the consummation of the transactions contemplated hereby would constitute a default;
(v) enter into any contract for the purchase of real property or exercise any option to extend a lease listed in Schedule 5.9; ------------
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers to any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of its properties, rights or assets, other than inventory and minor amounts of personal property sold or otherwise disposed of in the ordinary course of the Business consistent with past practice and other than Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by it or pay, settle or discharge any claims/litigation, proceedings, actions or liabilities, other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness for Borrowed Money (other than money borrowed or advances from any of its Affiliates in the ordinary course of the Business consistent with past practice) or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13);
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) make, or agree to make, any distribution of assets (other than cash) to Parent or any of its Affiliates;
(xii) institute any increase in any benefit provided, or loan or advance any money or property, to any present or former director, officer, consultant or employee of any of the Companies, other than in the ordinary course of the Business consistent with past practice or as required by any Company Plan, Parent Plan or Requirements of Law;
(xiii) make any material change in the compensation of its employees, other than changes made in accordance with normal compensation practices of the Companies or pursuant to existing contractual commitments and consistent with past compensation practices, or grant any severance or termination pay to any of its employees or amend the form of retention and severance agreement contained in Schedule 7.4; ------------
(xiv) establish, adopt, enter into, amend or terminate any Company Plan, or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Plan if it were in existence on the date hereof, other than in the ordinary course of the Business consistent with past practice or as required by any Company Plan, Parent Plan or Requirement of Law;
(xv) make any material change in the accounting policies applied in the preparation of the Interim Financial Statements, unless such change is required by GAAP;
(xvi) make any change in its charter, by-laws or other organizational document or issue any capital stock (or securities exchangeable, convertible or exercisable for capital stock);
(xvii) split, combine or reclassify any shares of its capital stock or partnership or membership interests or declare, set aside or pay any dividends or make any other distributions (whether in cash, stock or other property) in respect of such shares or interests, except for cash dividends and distributions payable by a Conveyed Companies Subsidiary to any of the Companies, Parent or Affiliates of Parent;
(xviii) except as required by law, and except in cases where doing so would not have a material adverse consequence to Buyer Group Members with respect to taxable years or periods beginning after the Closing Date or, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date, file any Tax Return in a manner inconsistent with past practice or take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in prior periods in filing Tax Returns (including any such position, election or method which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Parent is liable);
(xix) amend any Tax Returns or settle or compromise any proceeding relating to Tax liabilities of any Company, in either case if doing so would, or would reasonably be expected to, materially adversely affect any Buyer Group Member with respect to taxable years or periods beginning after the Closing Date or, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date;
(xx) enter into or amend any aviation, manufacturing or transportation customer contract, other than new contracts with existing customers and amendments to existing contracts, in each case, where the terms of such new contract or amendment are not materially less favorable to the Companies than existing contracts with such customers;
(xxi) enter into any joint venture, partnership or similar arrangement or acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, limited liability company, partnership, joint venture association or other business organization or division thereof;
(xxii) merge or consolidate with or into any other Person or dissolve or liquidate; or
(xxiii) authorize, commit or agree, whether in writing or otherwise, to do any of the foregoing.
Acquisition Services (i) Serve as the Company’s investment and financial advisor and provide relevant market research and economic and statistical data in connection with the Company’s assets and investment objectives and policies;
(ii) Subject to Section 4 hereof and the investment objectives and policies of the Company: (a) locate, analyze and select potential investments; (b) structure and negotiate the terms and conditions of transactions pursuant to which investments in Properties, Loans and other Permitted Investments will be made; (c) acquire, originate and dispose of Properties, Loans and other Permitted Investments on behalf of the Company; (d) arrange for financing and refinancing and make other changes in the asset or capital structure of investments in Properties, Loans and other Permitted Investments; and (e) enter into leases, service contracts and other agreements for Properties, Loans and other Permitted Investments;
(iii) Perform due diligence on prospective investments and create due diligence reports summarizing the results of such work;
(iv) Prepare reports regarding prospective investments that include recommendations and supporting documentation necessary for the Directors to evaluate the proposed investments;
(v) Obtain reports (which may be prepared by the Advisor or its Affiliates), where appropriate, concerning the value of contemplated investments of the Company;
(vi) Deliver to or maintain on behalf of the Company copies of all appraisals obtained in connection with the Company’s investments; and
(vii) Negotiate and execute approved investments and other transactions, including prepayments, maturities, workouts and other settlements of Loans and other Permitted Investments.
Single Purpose Entity/Separateness Borrower represents, warrants and covenants as follows:
(a) Borrower has not and will not:
(i) engage in any business or activity other than the ownership, operation and maintenance of the Properties, and activities incidental thereto;
(ii) acquire or own any assets other than (A) the Properties, and (B) such incidental Personal Property as may be necessary for the ownership and operation of the Properties;
(iii) merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure;
(iv) (A) fail to observe all organizational formalities necessary to maintain its separate existence, or fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the applicable Legal Requirements of the jurisdiction of its organization or formation, or (B) amend, modify, terminate or fail to comply with the single purpose entity provisions of its organizational documents, in each case without the prior written consent of Lender;
(v) own any subsidiary, or make any investment in, any Person;
(vi) except as contemplated by the Loan Documents with respect to co-borrowers under the Loan and prior loans that have been satisfied in full as of the date hereof, commingle its assets with the assets of any other Person, or permit any Affiliate or constituent party independent access to its bank accounts;
(vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation (other than certain obligations of Operating Lessee or a predecessor operating lessee)), other than the Debt and Permitted Debt and prior loans that have been satisfied in full as of the date hereof;
(viii) fail to maintain its records, books of account, bank accounts, financial statements, accounting records and other entity documents separate and apart from those of any other Person; except that Borrower’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of an Affiliate, provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separate identity of Borrower from such Affiliate and that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, and (B) Borrower’s assets, liabilities and net worth shall also be listed on Borrower’s own separate balance sheet;
(ix) except for capital contributions or capital distributions permitted under the terms and conditions of Borrower’s organizational documents and properly reflected on its books and records, enter into any transaction, contract or agreement with any general partner, member, shareholder, principal, guarantor of the obligations of Borrower, or any Affiliate of the foregoing, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with unaffiliated third parties;
(x) maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xi) except as contemplated by the Loan Documents with respect to co-borrowers under the Loan and prior loans that have been satisfied in full as of the date hereof and certain obligations of Operating Lessee (or a predecessor operating lessee) thereunder, assume or guaranty the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets to secure the obligations of any other Person or hold out its credit or assets as being available to satisfy the obligations of any other Person;
(xii) make any loans or advances to any Person, or own any stock or securities of, any Person, or buy or hold evidence of indebtedness issued by any other Person;
(xiii) fail to (A) file its own tax returns separate from those of any other Person, except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under applicable Legal Requirements and (B) pay any taxes required to be paid under applicable Legal Requirements; provided, however, that Borrower shall not have any obligation to reimburse its equityholders or their Affiliates for any taxes that such equityholders or their Affiliates may incur as a result of any profits or losses of Borrower;
(xiv) fail to (A) hold itself out to the public as a legal entity separate and distinct from any other Person, (B) conduct its business solely in its own name or (C) correct any known misunderstanding regarding its separate identity;
(xv) fail to intend to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, however, that the foregoing shall not require Borrower’s members, partners or shareholders to make additional capital contributions to Borrower;
(xvi) without the unanimous written consent of all of its partners or members, as applicable, and the written consent of all directors or managers of Borrower or each SPE Component Entity, as applicable including, without limitation, each Independent Director, take any Material Action or action that is intended to cause such entity to become insolvent;
(xvii) fail to fairly and reasonably allocate shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such expenses;
(xviii) fail to intend to remain solvent or, except as contemplated by the Loan Documents with respect to co-borrowers under the Loan, pay its own liabilities (including, without limitation, salaries of its own employees) only from its own funds; provided, however, that the foregoing shall not require Borrower’s members, partners or shareholders to make additional capital contributions to Borrower;
(xix) acquire obligations or securities of its partners, members, shareholders or other affiliates, as applicable;
(xx) violate or cause to be violated the assumptions made with respect to Borrower and its principals in the Non-Consolidation Opinion or any New Non-Consolidation Opinion;
(xxi) fail to maintain a sufficient number of employees in light of its contemplated business operations;
(xxii) fail to maintain and use separate stationery, invoices and checks bearing its own name;
(xxiii) have any of its obligations guaranteed by an Affiliate, except (x) as contemplated by the Loan Documents and prior loans that have been satisfied in full as of the date hereof and (y) with respect to co-borrowers under the Loan or guarantees relating to obligations under the Management Agreements or Franchise Agreements; or
(xxiv) identify itself as a department or division of any other Person.
(i) If Borrower is a partnership or limited liability company (other than a single-member Delaware limited liability company formed under the Act which complies with the requirements of subsection (b)(ii) below) (an “Acceptable DE LLC”), each general partner in the case of a partnership, or the managing member in the case of a limited liability company (each an “SPE Component Entity”) of Borrower, as applicable, shall be an Acceptable DE LLC. Each SPE Component Entity (A) will at all times comply with each of the covenants, terms and provisions contained in Sections 6.1(a)(iii) through (vi) and (viii) through (xxiv) inclusive, as if such representation, warranty or covenant was made directly by such SPE Component Entity; (B) will not engage in any business or activity other than owning an interest in Borrower; (C) will not acquire or own any assets other than its partnership, membership, or other equity interest in Borrower; (D) will not own any subsidiary, or make any investment in any Person other than its investment in Borrower; (E) will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation); and (F) will cause Borrower to comply with the provisions of this Section 6.1 and Section 6.4. Prior to the withdrawal or the disassociation of any SPE Component Entity from Borrower, Borrower shall immediately appoint a new general partner or managing member whose limited liability company agreement is substantially similar to that of such SPE Component Entity and, if an opinion letter pertaining to substantive consolidation was required at closing, deliver a new opinion letter acceptable to Lender and the Rating Agencies with respect to the new SPE Component Entity and its equity owners. Notwithstanding the foregoing, to the extent Borrower is an Acceptable DE LLC, so long as Borrower maintains such formation status and complies with the requirements set forth in subsection (b)(ii) below, the SPE Component Entity requirement as set forth in this section shall not be applicable. Furthermore, in no event shall Borrower or any SPE Component Entity be a corporation unless such corporation has a shareholder that is an Acceptable DE LLC that complies with Section 6.4 hereof and no Material Action may be taken with respect to such corporation without the vote of such Acceptable DE LLC and its Independent Directors.
(ii) In the event Borrower or SPE Component Entity is an Acceptable DE LLC (as referred to in this clause (ii), the “Company”), the limited liability company agreement of the Company (the “LLC Agreement”) shall provide that (A) upon the occurrence of any event that causes the sole member of the Company (“Member”) to cease to be the member of the Company (other than (1) upon an assignment by Member of all of its limited liability company interest in the Company and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement, or (2) the resignation of Member and the admission of an additional member of the Company in accordance with the terms of the Loan Documents and the LLC Agreement), the personal representative of Member shall, within ninety (90) days, agree in writing to continue the existence of the Company and to the admission of such personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that caused the Member to cease to be a member of the Company, and a natural person duly designated under the LLC Agreement any person acting as Independent Director of the Company and executing the LLC Agreement (“Special Member”) shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of the Company, automatically be admitted to the Company and shall continue the existence of the Company without dissolution, and (B) Special Member may not resign from the Company or transfer its rights as Special Member unless (1) a successor Special Member has been admitted to the Company as Special Member in accordance with the requirements of the Act and (2) after giving effect to such resignation, such successor Special Member has also accepted its appointment as an Independent Director. The LLC Agreement shall further provide that (v) Special Member shall automatically cease to be a member of the Company upon the admission to the Company of a substitute Member, (w) Special Member shall be a member of the Company that has no interest in the profits, losses and capital of the Company and has no right to receive any distributions of the assets of the Company, (x) pursuant to Section 18-301 of the Act, Special Member shall not be required to make any capital contributions to the Company and shall not receive a limited liability company interest in the Company, (y) Special Member, in its capacity as Special Member, may not bind the Company, and (z) except as required by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, the Company, including, without limitation, the merger, consolidation or conversion of the Company; provided, however, such prohibition shall not limit the obligations of Special Member, in its capacity as Independent Director, to vote on such matters required by the Loan Documents or the LLC Agreement. Prior to its admission to the Company as Special Member, Special Member shall not be a member of the Company, but the Special Member may serve as an Independent Director of the Company. Any action initiated by or brought against Member or Special Member under any Creditors Rights Laws shall not cause Member or Special Member to cease to be a member of the Company and upon the occurrence of such an event, the existence of the Company shall continue without dissolution. The LLC Agreement shall also provide that each of Member and Special Member waives any right it might have to agree in writing to dissolve the Company upon the occurrence of any action initiated by or brought against Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member or Special Member to cease to be a member of the Company.
(c) The organizational documents of Borrower and each SPE Component Entity shall provide an express acknowledgment that Lender is an intended third-party beneficiary of the “special purpose” provisions of such organizational documents.
(d) Borrower has executed and delivered to Lender the certificate attached hereto as Exhibit D.
Acquisition Corp Acquisition Corp. is a wholly-owned Delaware subsidiary of Parent that was formed specifically for the purpose of the Merger and that has not conducted any business or acquired any property, and will not conduct any business or acquire any property prior to the Closing Date, except in preparation for and otherwise in connection with the transactions contemplated by the Merger Documents and the other agreements to be made pursuant to or in connection with the Merger Documents.
Asset Management Supplier will: i) maintain an asset inventory of all media and equipment where Accenture Data is stored. Access to such media and equipment will be restricted to authorized Personnel; ii) classify Accenture Data so that it is properly identified and access to it is appropriately restricted; iii) maintain an acceptable use policy with restrictions on printing Accenture Data and procedures for appropriately disposing of printed materials that contain Accenture Data when such data is no longer needed under the Agreement; iv) maintain an appropriate approval process whereby Supplier’s approval is required prior to its Personnel storing Accenture Data on portable devices, remotely accessing Accenture Data, or processing such data outside of Supplier facilities. If remote access is approved, Personnel will use multi-factor authentication, which may include the use of smart cards with certificates, One Time Password (OTP) tokens, and biometrics.
