Interim Covenants. (a) From the date of this Agreement until the Closing Date (the “Interim Period”), and as further memorialized in the Voting Agreements executed by the Sellers, a form of which is attached as Exhibit C hereto (the “Voting Agreements”), each Seller undertakes, in its capacity as a shareholder of the Company to exercise its voting rights as a shareholder of the Company, to object to the passing of any shareholders’ resolution of the Company with respect to the following matters: (i) any amendment and/or change and/or alteration of the Company's Organisational Documents, unless any such amendment or change or alteration is required by law; (ii) voluntary liquidation of the Company or any of the Company's Subsidiaries, and/or the engagement in any arrangement with all, or a class of, the creditors of the Company and/or of the Company's Subsidiaries; (iii) any related party transaction by and between the Company or any of its Subsidiaries, on the one hand, and the Sellers or any of its Affiliates (other than the Company or any of its Subsidiaries), on the other hand, which requires the approval of the Company's shareholders; (iv) any merger, substantial sale of assets and/or any other change in the corporate structure of the Company and/or any of the Company's Subsidiaries which requires the approval of the Company's shareholders; (v) any other material transaction and/or action which is not in the ordinary course of the Company and/or of the Company's Subsidiaries which requires the approval of the Company's shareholders; and (vi) the Company’s issuance of any shares of common stock or Equity Securities requiring approval of the Company’s shareholders. (b) Xxxxxxx Xx undertakes, in his capacity as Chief Executive Officer of the Company, not to take the following actions on behalf of the Company prior to closing without Purchaser’s consent:
Appears in 2 contracts
Samples: Share Purchase Agreement (Wu Jianhua), Share Purchase Agreement (YSK 1860 Co., LTD)
Interim Covenants. (a) From During the period between the date of this Agreement until and the Closing Date Date, other than (i) as expressly contemplated by this Agreement, (ii) as set forth in Schedule 6.5 or (iii) as consented to in writing by Buyer:
(a) the “Interim Period”), and as further memorialized in the Voting Agreements executed by the Sellers, a form of which is attached as Exhibit C hereto Sellers shall (the “Voting Agreements”), each Seller undertakes, in its capacity as a shareholder of i) cause the Company to exercise (A) be operated in the ordinary course consistent with past practices, (B) maintain and preserve intact its voting rights as a shareholder current business organization and use commercially reasonable efforts to keep available the service of the current employees of the Company, (C) use commercially reasonable efforts to object maintain and preserve intact its current relationships with its Clients and other Persons with which the Company has material business relationships, (D) comply in all material respects with all applicable Laws and Contracts, (E) maintain in full force and effect all insurance policies in effect on the date hereof, and (ii) not transfer, sell or assign, or permit to be subject to any Encumbrance any of the passing Purchased Interests; and
(b) without limiting the generality of the foregoing, the Sellers shall not, and shall cause the Company not to:
(i) amend its Organizational Documents;
(ii) purchase or redeem or otherwise acquire any shareholders’ resolution interests in the Company, or make any distribution to its members or with respect to its membership interests other than distributions of cash and other assets of the Company with respect to the following matters: (i) any amendment and/or change and/or alteration in excess of the Company's Organisational Documents, unless any such amendment or change or alteration is required by law; (ii) voluntary liquidation of the Company or any of the Company's Subsidiaries, and/or the engagement in any arrangement with all, or a class of, the creditors of the Company and/or of the Company's Subsidiaries; Targeted Net Working Capital;
(iii) acquire any related party transaction business or Person, by and between the Company merger or any consolidation, purchase of its Subsidiaries, on the one hand, and the Sellers substantial assets or any of its Affiliates (other than the Company equity interests or any of its Subsidiaries), on the other hand, which requires the approval of the Company's shareholders; otherwise;
(iv) enter into any mergerlimited liability company agreement, substantial sale of assets and/or any other change in the corporate structure of the Company and/or any of the Company's Subsidiaries which requires the approval of the Company's shareholders; joint venture, partnership, strategic alliance, stockholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(v) pay, discharge, settle or satisfy any other material transaction and/or action which is not claims, liabilities or obligations in excess of $50,000 individually or $100,000 in the aggregate, except in the ordinary course of the Company and/or of the Company's Subsidiaries which requires the approval of the Company's shareholders; business consistent in nature and amount with past practice;
(vi) sell, transfer, assign, convey, lease, license, mortgage, pledge or otherwise subject to any Encumbrance any of its material properties or assets, tangible or intangible, except in the Company’s issuance ordinary course of business consistent in nature and amount with past practices;
(vii) incur, assume or guarantee (including by way of any shares agreement to “keep well” or of common stock any similar arrangement) any Indebtedness in excess of $100,000 or Equity Securities requiring approval amended the terms relating to any Indebtedness in excess of $100,000;
(viii) change any accounting principle, method or practice (including any principles, methods or practices relating to the estimation of reserves or other liabilities) in any material respect;
(ix) (A) terminate or send notice of the Company’s shareholders.
termination of, the employment of any officer or investment professional, (bB) Xxxxxxx Xx undertakes, in his capacity as Chief Executive Officer with respect to any employee of the Company, not other than in the ordinary course of business consistent with past practice, enter into a Contract to take the following actions on behalf make any increase in wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to such employee, (C) grant or agree to grant any severance or termination pay or enter into any Contract to make or grant any severance or termination pay or pay any bonus other than pursuant to any such agreement, existing as of the date hereof and set forth in the Company prior Disclosure Schedule, (D) other than in the ordinary course of business consistent with past practice, grant or agree to closing without Purchaser’s consent:grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Employee Benefit Plan or accelerate the time of vesting or payment under any Employee Benefit Plan, or (E) establish, adopt, enter into, amend or terminate any Employee Benefit Plan;
(x) make or incur any capital expenditure or other financial commitment requiring payments in any fiscal year in excess of $50,000 individually or $100,000 in the aggregate;
(xi) make, change or revoke any Tax election or settle or compromise any Tax item; change any method of Tax accounting; prepare any Tax Returns in a manner that is inconsistent with its past practice with respect to the treatment of items on such Tax Returns; file an amended Tax Return or a claim for refund of Taxes with respect to its income, operations or property; or consent to any extension or waiver of the statute of limitations period;
(xii) conduct its billing and cash management customs and practices (including the collection of receivables and payment of payables) other than in the ordinary course of business consistent with past practice;
(xiii) fail to pay its creditors in accordance with their respective credit terms or (if no stated terms) within the time periods applicable to such creditors in the ordinary course of business consistent with past practice;
(xiv) make or effect any loan or advance or other extension of credit to, or an equity investment in, any other Person, in each case in excess of $25,000 individually or $100,000 in the aggregate; or
(xv) enter into any Contract or letter of intent with respect to (whether or not binding), or otherwise commit or agree, whether or not in writing, to do any of the foregoing.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (NewStar Financial, Inc.)
Interim Covenants. (a) From the date of this Agreement until the Closing Date (the “Interim Period”), and as further memorialized in the Voting Agreements executed by the Sellers, a form of which is attached as Exhibit C hereto (the “Voting Agreements”), each Seller undertakes, in its capacity as a shareholder of the Company to exercise its voting rights as a shareholder of the Company, to object to the passing of any shareholders’ resolution of the Company with respect to the following matters: (i) any amendment and/or change and/or alteration of the Company's Organisational Documents, unless any such amendment or change or alteration is required by law; (ii) voluntary liquidation of the Company or any of the Company's Subsidiaries, and/or the engagement in any arrangement with all, or a class of, the creditors of the Company and/or of the Company's Subsidiaries; (iii) any related party transaction by and between the Company or any of its Subsidiaries, on the one hand, and the Sellers or any of its Affiliates (other than the Company or any of its Subsidiaries), on the other hand, which requires the approval of the Company's shareholders; (iv) any merger, substantial sale of assets and/or any other change in the corporate structure of the Company and/or any of the Company's Subsidiaries which requires the approval of the Company's shareholders; (v) any other material transaction and/or action which is not in the ordinary course of the Company and/or of the Company's Subsidiaries which requires the approval of the Company's shareholders; and (vi) the Company’s issuance of any shares of common stock or Equity Securities requiring approval of the Company’s shareholders.
(b) Xxxxxxx Xx undertakes, in his capacity as Chief Executive Officer of the Company, not to take the following actions on behalf of the Company prior to closing without Purchaser’s written consent:
(i) sell, assign or otherwise transfer any of the assets of the Company or its Subsidiaries, or cancel or compromise any debts or claims relating to such assets, other than for fair value, in the ordinary course of business, and consistent with past practice;
(ii) permit any Material Adverse Effect to occur with respect to the Company or its Subsidiaries.
(iii) except as expressly contemplated by this Agreement, authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iv) amend, waive or otherwise change, in any respect, its Organizational Documents (except as contemplated by this Agreement); or
(v) enter into any new line of business.
(b) Seller shall not dispose of any interest in the Subject Shares or any of them or grant any option over or create after the date hereof any Security Interest over the Subject Shares or any of them.
(c) Nothing in this Section 5.1 shall inhibit or otherwise restrict any of the Subsidiaries from conducting its business during the Interim Period either (A) in the ordinary course of business, including, taking any of the following actions: (i) obtaining financing required for the ongoing business activity of any of the Subsidiaries; (ii) purchasing, selling or leasing or the granting any other third party rights or security interests in or over the non-material assets of any of the Subsidiaries; (B) in anticipation of and/or in preparation for the consummation of the sale and purchase of the Subject Shares contemplated by this Agreement, including agreeing to any variation or termination of any of the outstanding arrangements or transactions made between the Seller or any of its Affiliates (other than the Company or any of its Subsidiaries) and any of the Subsidiaries whether or not set forth in Section 3.7 of the Seller Disclosure Schedule and on terms approved by the Board; provided, that in all such cases, Seller shall give written notice to Purchaser of such actions no later than five (5) business days after the taking of such actions.
(d) The Parties agree to use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated hereby, including (i) the obtaining of all other necessary actions or inactions, waivers, consents, licenses, Permits, authorizations, Orders and approvals from Governmental Authorities and the making of all other necessary registrations and filings, (ii) the obtaining of all consents, approvals or waivers from third parties related to or required in connection with the transactions contemplated herein or required to prevent a Material Adverse Effect on the Company from occurring prior to or after the Closing Date, (iii) the satisfaction of all conditions precedent to the Parties’ obligations hereunder, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement.
(e) Each of the Parties hereto will give any notices to, make any filings with, and use its commercially reasonable efforts to obtain any authorizations, consents, and approvals of governments and governmental agencies in connection with the matters referred to herein.
(f) No transaction or arrangement shall be made, during the Interim Period, between the Seller or any of its Affiliates (other than the Company or any of its Subsidiaries) and the Company without prior written approval from the Purchaser.
(g) Seller shall ensure that the Company’s seal will not be used without the written approval of the Purchaser, and shall be liable for any liabilities of the Company arising from or as a result of its use of the seal during the Interim Period.
(i) Seller shall ensure that the Company pays all of its expenses incurred or accrued up to and through the Closing.
Appears in 1 contract
Interim Covenants. (a) From the date of this Agreement until the Closing Date (the “Interim Period”), and as further memorialized in the Voting Agreements executed by the Sellers, a form of which is attached as Exhibit C A hereto (the “Voting Agreements”), each Seller undertakes, in its capacity as a shareholder of the Company to exercise its voting rights as a shareholder of the Company, to object to the passing of any shareholders’ resolution of the Company with respect to the following matters: (i) any amendment and/or change and/or alteration of the Company's Organisational Organizational Documents, unless any such amendment or change or alteration is required by law; (ii) voluntary liquidation of the Company or any of the Company's Subsidiaries, and/or the engagement in any arrangement with all, or a class of, the creditors of the Company and/or of the Company's Subsidiaries; (iii) any related party transaction by and between the Company or any of its Subsidiaries, on the one hand, and the Sellers or any of its Affiliates (other than the Company or any of its Subsidiaries), on the other hand, which requires the approval of the Company's shareholders; (iv) any merger, substantial sale of assets and/or any other change in the corporate structure of the Company and/or any of the Company's Subsidiaries which requires the approval of the Company's shareholders; (v) any other material transaction and/or action which is not in the ordinary course of the Company and/or of the Company's Subsidiaries which requires the approval of the Company's shareholders; and (vi) the Company’s issuance of any shares of common stock or Equity Securities requiring approval of the Company’s shareholders.
(b) Xxxxxxx Xx Xxx Xxxx undertakes, in his capacity as Chief Executive Officer of the Company, not to take the following actions on behalf of the Company prior to closing without Purchaser’s consent:
(i) sell, assign or otherwise transfer any of the assets of the Company or its Subsidiaries, or cancel or compromise any debts or claims relating to such assets, other than for fair value, in the ordinary course of business, and consistent with past practice;
(ii) permit any Material Adverse Effect to occur with respect to the Company or its Subsidiaries.
(iii) except as expressly contemplated by this Agreement, authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iv) amend, waive or otherwise change, in any respect, its Organizational Documents (except as contemplated by this Agreement); or
(v) enter into any new line of business.
(c) The Sellers shall not dispose of any interest in the Purchase Shares or any of them or grant any option over or create after the date hereof any Security Interest over the Purchase Shares or any of them. The Sellers shall use all means required in order to obtain the Pledge Release (to the extent the Pledge relates to the Shares it holds).
(d) Nothing in this Section 5.1 shall inhibit or otherwise restrict any of the Subsidiaries from conducting its business during the Interim Period either (A) in the ordinary course of business, including, taking any of the following actions: (i) obtaining financing required for the ongoing business activity of any of the Subsidiaries; (ii) purchasing, selling or leasing or the granting any other third party rights or security interests in or over the non-material assets of any of the Subsidiaries; (B) in anticipation of and/or in preparation for the consummation of the sale and purchase of the Purchase Shares contemplated by this Agreement, including agreeing to any variation or termination of any of the outstanding arrangements or transactions made between the Sellers or any of its Affiliates (other than the Company or any of its Subsidiaries) and any of the Subsidiaries whether or not set forth in Section 3.7 of the Sellers Disclosure Schedule and on terms approved by the Board; provided, that in all such cases, Sellers shall give written notice to Purchaser of such actions no later than five (5) business days after the taking of such actions.
(e) The Parties agree to use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated hereby, including (i) the obtaining of all other necessary actions or inactions, waivers, consents, licenses, Permits, authorizations, Orders and approvals from Governmental Authorities and the making of all other necessary registrations and filings, (ii) the obtaining of all consents, approvals or waivers from third parties related to or required in connection with the transactions contemplated herein or required to prevent a Material Adverse Effect on the Company from occurring prior to or after the Closing Date, (iii) the satisfaction of all conditions precedent to the Parties’ obligations hereunder, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement.
(f) Each of the Parties hereto will give any notices to, make any filings with, and use its commercially reasonable efforts to obtain any authorizations, consents, and approvals of governments and governmental agencies in connection with the matters referred to herein.
(g) No transaction or arrangement shall be made, during the Interim Period, between the Sellers or any of its Affiliates (other than the Company or any of its Subsidiaries) and the Company without prior written approval from the Purchasers.
(h) The Warrantors shall ensure that the Company’s seal will not be used without the written approval of the Purchasers, and shall be liable for any liabilities of the Company arising from or as a result of its use of the seal during the Interim Period.
(i) The Warrantors shall ensure that the Company pays all of its expenses incurred or accrued up to and through the Closing.
Appears in 1 contract
Samples: Share Purchase Agreement (Delta Technology Holdings LTD)
Interim Covenants. (a) Interim Operations of the Company. From the date hereof through the --------------------------------- Effective Time, the Company covenants and agrees that its business and the business of its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates. Without limiting the generality of the foregoing, the Company covenants and agrees as to itself and its Subsidiaries that, from the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreement or by Law):
(i) it shall not (A) issue, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries; (B) amend its certificate of incorporation or bylaws or the comparable governing instruments of any of its Subsidiaries; (C) split, combine or reclassify its outstanding shares of capital stock; or (D) repurchase, redeem or otherwise acquire any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock, except in connection with the Company Stock Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(ii) neither it nor any of its Subsidiaries shall (A) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any Voting Debt or any other property or assets (other than Shares issuable pursuant to Company Options outstanding on the date hereof under the Company Stock Plans); (B) other than in the ordinary and usual course of business, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries); (C) incur or modify any indebtedness for borrowed money or guarantee any such indebtedness of another Person; or (D) by any means, make any acquisition of, or investment in, assets or stock (whether by way of merger, consolidation, tender offer, share exchange or other activity) of any Person;
(iii) neither it nor any of its Subsidiaries shall enter into any transaction involving a merger, consolidation, reorganization, share exchange, or similar transaction involving, or any purchase of any assets or any securities of, it or any of its Subsidiaries;
(iv) it shall not adopt any stockholder rights plan or, except as provided in Section 5.22, alter or further amend the Company Rights Plan or the Company Rights;
(v) neither it nor any of its Subsidiaries shall make any capital expenditures or other expenditures with respect to property, plant or equipment except pursuant to the capital expenditure budget set forth in Section 7.1(a)(v) of the Company Disclosure Letter;
(vi) neither it nor any of its Subsidiaries shall make any changes in accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve;
(vii) neither it nor any of its Subsidiaries shall (A) pay, discharge, settle or satisfy any claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms as in effect on the date of this Agreement, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Company Reports filed prior to the date of this Agreement until (to the Closing Date (extent so reflected or reserved against) or incurred since the “Interim Period”), and as further memorialized date of such financial statements in the Voting Agreements executed by the Sellersordinary course of business consistent with past practice, a form of which is attached as Exhibit C hereto or (the “Voting Agreements”)B) waive any material benefits of, each Seller undertakesmodify in any adverse respect, in its capacity as a shareholder of the Company fail to exercise its voting rights as a shareholder of the Companyenforce, or consent to object to the passing of any shareholders’ resolution of the Company matter with respect to the following matters: (i) any amendment and/or change and/or alteration of the Company's Organisational Documents, unless any such amendment or change or alteration which its consent is required by law; (ii) voluntary liquidation of the Company under, any confidentiality, standstill or any of the Company's Subsidiaries, and/or the engagement in any arrangement with all, or a class of, the creditors of the Company and/or of the Company's Subsidiaries; (iii) any related party transaction by and between similar agreements to which the Company or any of its Subsidiaries, on the one hand, and the Sellers or Subsidiaries is a party;
(viii) neither it nor any of its Affiliates (other than Subsidiaries shall except in the ordinary course of business consistent with past practice, modify, amend or terminate any material contract or agreement to which the Company or any of its Subsidiaries)Subsidiaries is party, on the or knowingly waive, release or assign any material rights or claims (including any write-off or other hand, which requires the approval compromise of the Company's shareholders; (iv) any merger, substantial sale of assets and/or any other change in the corporate structure accounts receivable of the Company and/or of any of the Company's its Subsidiaries);
(ix) neither it nor any of its Subsidiaries which requires the approval of the Company's shareholders; (v) any other material transaction and/or action which is not shall except in the ordinary course of business consistent with past practice (A) enter into any material contract or agreement relating to the distribution, sale or marketing by third parties of the products, of, or products licensed by, the Company and/or or any of its Subsidiaries or (B) license any material intellectual property rights to or from any third party;
(x) neither it nor any of its Subsidiaries shall except as required to comply with applicable law or agreements, plans or arrangements existing on the Company's Subsidiaries which requires date hereof, (A) adopt, enter into, terminate or amend any employment, severance or similar agreement or benefit plan for the approval of the Company's shareholders; and (vi) the Company’s issuance benefit or welfare of any shares of common stock current or Equity Securities requiring approval of the Company’s shareholders.
former director, officer, employee or consultant or any collective bargaining agreement, (bB) Xxxxxxx Xx undertakes, except as provided in his capacity as Chief Executive Officer of the Company, not to take the following actions on behalf Section 7.1(a)(x) of the Company prior Disclosure Letter, increase in any material respect the compensation or fringe benefits of, or pay any bonus to, any director, officer, key employee or consultant, (C) accelerate the payment, right to closing without Purchaser’s consent:payment or vesting of any compensation or benefits, including any outstanding options or restricted stock awards, (D) pay any material benefit not provided for as of the date of this Agreement under any benefit plan, (E) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any benefit plans or agreements or awards made thereunder); provided, however, that the Company shall be permitted to grant options (with exercise prices equal to the fair market value of the Company Common Stock on the respective dates of grant) to purchase Shares under the Company Stock Plans in the ordinary course of business consistent with past practice, or (F) take any action other than in the ordinary course of business consistent with past practice to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or benefit plan;
(xi) it shall not make or rescind any Tax election, settle or compromise any Tax liability or amend any Tax return;
(xii) neither it nor any of its Subsidiaries shall initiate, compromise or settle any material litigation or arbitration proceeding;
(xiii) neither it nor any of its Subsidiaries shall fail to maintain insurance at levels substantially comparable to levels existing as of the date of this Agreement;
(xiv) neither it nor any of its Subsidiaries shall fail to pay accounts payable and other obligations in the ordinary course of business consistent with past practice; or
(xv) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action which would make any representation or warranty of the Company in this Agreement untrue or incorrect in any material respect, or would materially impair or prevent the occurrence of any the conditions contained in Section 7 hereof.
Appears in 1 contract
Samples: Merger Agreement (Applied Science & Technology Inc)
Interim Covenants. (a) From the date hereof until the earlier of (x) the date this Agreement until is terminated pursuant to Article VIII and (y) the Closing Date Date, unless Parent shall otherwise consent in writing (the “Interim Period”)which consent shall not be unreasonably withheld, delayed or conditioned) and except as further memorialized in the Voting Agreements executed otherwise expressly required or permitted by the Sellersthis Agreement, a form of which is attached as Exhibit C hereto (the “Voting Agreements”), each Seller undertakes, in its capacity as a shareholder of the Company to exercise its voting rights as a shareholder of the Company, to object to the passing of any shareholders’ resolution of and the Company with respect to the following matters: (i) any amendment and/or change and/or alteration of the Company's Organisational Documents, unless any such amendment or change or alteration is required by law; (ii) voluntary liquidation of the Company or any of the Company's Subsidiaries, and/or the engagement in any arrangement with all, or a class of, the creditors of the Company and/or of the Company's Subsidiaries; (iii) any related party transaction by and between the Company or any of its Subsidiaries, on the one hand, and the Sellers or any of its Affiliates (other than the Company or any of its Subsidiaries), on the other hand, which requires the approval of the Company's shareholders; (iv) any merger, substantial sale of assets and/or any other change in the corporate structure of the Company and/or any of the Company's Subsidiaries which requires the approval of the Company's shareholders; (v) any other material transaction and/or action which is not shall operate their respective businesses in the ordinary course of business and in compliance in all material respects with all applicable laws and neither the Company and/or nor any Company Subsidiary shall:
(i) issue, sell, deliver, award or grant any equity securities, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any equity securities, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any equity securities or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any equity securities, other than pursuant to the Option Plan;
(ii) (A) split, combine, subdivide or reclassify any shares of its capital stock or other equity securities, (B) redeem or repurchase any capital stock or other equity securities or any outstanding options, warrants or rights of any kind to acquire any equity securities, or any outstanding securities that are convertible into or exchangeable for any of its capital stock or other equity securities, other than pursuant to the terms and conditions of the Company's Option Plan, any Award Agreement; or (C) declare, set aside or pay any dividend or make any distribution with respect to its equity securities (whether in cash or in kind) other than in the ordinary course of business consistent with past practice;
(iii) adopt any amendments to its certificate of incorporation or other governing documents;
(iv) other than any borrowings by the Company or the Company Subsidiaries which requires under their credit facility in accordance with the approval terms thereof, and except as otherwise permitted by the terms of thereof, (A) incur or guarantee any additional Indebtedness for Borrowed Money or (B) make any loans or advances to any other Person, other than advances to employees in the Company's shareholders; ordinary course of business;
(v) other than inventory, property, plant and equipment spending, and other assets acquired in the ordinary course of business, acquire properties or assets, including stock or other equity interests of another Person, with a value in excess of $2,000,000, whether through merger, consolidation, share exchange, business combination or otherwise;
(vi) convey, transfer, sell, lease or license any of its properties or assets, other than in the ordinary course of business;
(vii) except as may be required by law, adopt, terminate or amend any Employee Benefit Plan or Non U.S. Employee Benefit Plan;
(viii) make or change any material election relating to Taxes or settle or compromise any Tax liability (other than the payment of Taxes or collection of refunds in the ordinary course of business), adopt or change any Tax accounting method, amend any Tax Return, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or fail to pay any Tax that is due and payable;
(ix) “make any “investment”, as such term is defined in subsection 212.3(10) of the ITA, in any corporation that is, or will be prior to the Closing, a “foreign affiliate” of any Company Subsidiary resident in Canada (for purposes of the ITA);
(x) adopt a plan of complete or partial liquidation or dissolution;
(xi) hire any new employee (other than hires of employees with annual base salary or wages of less than $100,000 in the ordinary course of business) or increase the compensation (including bonuses and other benefits) payable on or after the date hereof to any director, executive officer or employee except for increases in the ordinary course of business to employees earning less than $100,000 in base compensation per year, or provided for in any contracts or plans in effect on the date hereof;
(xii) terminate any existing employee, other than non-officer employees in the ordinary course of business;
(xiii) make any commitments for capital expenditures that shall not be satisfied prior to the Closing Date, other than (i) commitments contemplated by the capital expenditure budget of the Company and the Company Subsidiaries set forth on Schedule 5.1(a)(xiii), (ii) expenditures for routine or emergency maintenance and repair or (iii) other expenditures in an amount that does not exceed $500,000 in the aggregate;
(xiv) fail to maintain in effect the insurance policies in effect as of the date hereof, or insurance policies with comparable coverage;
(xv) change accounting methods, except as required by changes in GAAP or law, or as recommended by its independent accountants;
(xvi) engage in any promotional sales or discount or other activity with customers outside the ordinary course of business that has or would reasonably be expected to have the effect of accelerating to pre-Closing periods sales that would otherwise be expected to occur in post-Closing periods;
(xvii) conduct its cash management customs and practices or incur intercompany charges other than in the ordinary course of business in the same manner as heretofore conducted;
(xviii) amend or terminate (prior to its expiration) any Material Contract (other than extension or renewal of any Lease in the ordinary course of business);
(xix) abandon, fail to protect, permit to lapse, assign, sell, license, transfer or otherwise dispose of any material Intellectual Property owned by the Company or any Company Subsidiary;
(xx) incur any material liability or obligation outside of the ordinary course of business consistent with past practice;
(xxi) make any material loan to, or enter into any other material transaction with, any of its directors or executive officers outside the ordinary course of business, other than with respect to Transaction Bonuses;
(xxii) institute or settle any Action, except for any settlement where the only liability or obligation of the Company or a Company Subsidiary is the payment of an amount less than $25,000; or
(xxiii) authorize or approve any of the foregoing; provided that, notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall (A) give Parent, directly or indirectly, the right to control or direct in any manner the operations of the Company or the Company Subsidiaries prior to the Closing; or (B) prohibit or restrict the Company’s issuance or any Company Subsidiary’s ability to make withdrawals, borrow funds or make payments or pre-payments under any agreement related to Indebtedness (including any revolving line of any shares of common stock credit or Equity Securities requiring approval of the Company’s shareholderssimilar facility provided for thereunder).
(b) Xxxxxxx Xx undertakes, in his capacity as Chief Executive Officer of the Company, not to take the following actions on behalf of the Company prior to closing without Purchaser’s consent:
Appears in 1 contract
Samples: Merger Agreement (Jarden Corp)
Interim Covenants. (a) From the date of this Agreement until the Closing Date (the “Interim Period”), and the Seller undertakes, subject to the duties of the Seller under applicable law as further memorialized a controlling shareholder in the Voting Agreements executed by the Sellers, a form of which is attached as Exhibit C hereto (the “Voting Agreements”), each Seller undertakesCompany, in its capacity as a shareholder of the Company to exercise its voting rights as a shareholder of the Company, to object to the passing of any shareholders’ resolution of the Company with respect to the following matters: (i) any amendment and/or change and/or alteration of the Company's ’s Organisational Documents, unless any such amendment or change or alteration is required by law; (ii) voluntary voluntarily liquidation of the Company or any of the Company's ’s Subsidiaries, and/or the engagement in any arrangement with all, or a class of, the creditors of the Company and/or of the Company's ’s Subsidiaries; (iii) any related party transaction by and between the Company or any of its Subsidiaries, on the one hand, and the Sellers Seller or any of its Affiliates (other than the Company or any of its Subsidiaries), on the other hand, which requires the approval of the Company's ’s shareholders; (iv) any merger, substantial sale of assets merger and/or any other change in the corporate structure of the Company and/or any of the Company's ’s Subsidiaries which requires the approval of the Company's ’s shareholders; and (v) any other material transaction and/or action which is not in the ordinary course of the Company and/or of the Company's ’s Subsidiaries which requires the approval of the Company's shareholders; and (vi) the Company’s issuance of any shares of common stock or Equity Securities requiring approval of the Company’s shareholders.
(b) Xxxxxxx Xx undertakes, The Seller shall not dispose of any interest in his capacity the Purchase Shares or any of them or grant any option over or create after the date hereof any Security Interest over the Purchase Shares or any of them. The Seller shall use all means required in order to obtain the Pledge Release.
(c) Subject to the duties of the Seller under applicable law as Chief Executive Officer of a controlling shareholder in the Company, the Seller shall use commercially reasonable efforts to procure (x) a meeting of the audit committee to adopt a resolution granting, at Closing, registration rights to the Purchaser for a period of five (5) years following the Closing Date on terms and conditions similar to the terms and conditions of that certain registration rights agreement, dated October 26, 1999, by and among the Seller, the Company and the other parties thereto (the “Registration Rights Resolution”); (y) a meeting of the Board to adopt the Registration Rights Resolution; and (z) in the event that the audit committee of the Company and the Board adopt the Registration Rights Resolution, a meeting of the shareholders of the Company and to vote in favour of the Registration Rights Resolution.
(d) Nothing in this Section 5.1 shall inhibit or otherwise restrict the Company or any of its Subsidiaries from conducting its business during the Interim Period either (A) in the ordinary course of business, including, taking any of the following actions: (i) obtaining financing required for the ongoing business activity of the Company or any of its Subsidiaries, including issuance of bonds; (ii) purchasing, selling or leasing or the granting any other third party rights or security interests in or over the non-material assets of the Company or any of its Subsidiaries; (iii) declaring, setting aside or paying any Distribution with respect to any shares of the Company or any of its Subsidiaries; provided, that any Distributions of the Company to its shareholders shall be in accordance with the Company’s stated dividend policy as of the date hereof; (iv) agreeing to or performing any retention bonus plan or scheme for the benefit of certain members of the management of the Company or any of its Subsidiaries in an amount not in excess of US$12,000,000; (v) submission of bids to acquire MIRS Communications Limited; (vi) granting of share options pursuant to the terms of its existing share option plan or issuing shares pursuant to exercise of options granted or to be granted pursuant to such option plan; and (vii) obtaining and maintaining any licences and permits required for the business activity of the Company or any of its Subsidiaries, or (B) subject to Section 5.1(e), in anticipation of and/or in preparation for the consummation of the sale and purchase of the Purchase Shares contemplated by this Agreement, including agreeing to any variation or termination of any of the outstanding arrangements or transactions made between the Seller or any of its Affiliates (other than the Company or any of its Subsidiaries) and the Company or any of its Subsidiaries whether or not set forth in Section 3.5 of the Seller Disclosure Schedule and on terms approved by the Board.
(e) In respect of the agreements enumerated in Schedule 5.1(c), the Seller shall use its reasonable commercial endeavours after the date of this Agreement and prior to Closing to assist and facilitate the Company in its discussions and negotiations with the respective counterparties to these agreements (“Counterparties”) with a view to securing for the Company after Closing (a) the novation to the Company of the rights and obligations of the Company under the relevant agreements, where such novation is contemplated by the terms of the Related Party Transactions, or (b) where no such novation is contemplated by the agreements, the benefits, rights and obligations (subject to similar limitations and restrictions) on no less favourable terms as those applicable to the Company under the relevant agreements as if were a subsidiary of HTIL (and HTIL remains a subsidiary of Xxxxxxxxx Whampoa Limited) or as an entity named in the relevant agreements as being entitled to take the following actions on behalf benefit of the agreements (the “Commercial Benefits”). The Purchaser acknowledges that the Seller does not exercise Control over any of the Counterparties and the final terms and conditions upon which any Commercial Benefits are conferred on the Company prior will reflect the arm’s length negotiations to closing without Purchaserbe undertaken by the Company’s consent:management.
Appears in 1 contract
Samples: Share Purchase Agreement (Hutchison Telecommunications International LTD)
Interim Covenants. (a) From the date of this Agreement until the Closing Date (the “Interim Period”"INTERIM PERIOD"), and the Seller undertakes, subject to the duties of the Seller under applicable law as further memorialized a controlling shareholder in the Voting Agreements executed by the Sellers, a form of which is attached as Exhibit C hereto (the “Voting Agreements”), each Seller undertakesCompany, in its capacity as a shareholder of the Company to exercise its voting rights as a shareholder of the Company, to object to the passing of any shareholders’ ' resolution of the Company with respect to the following matters: (i) any amendment and/or change and/or alteration of the Company's Organisational Documents, unless any such amendment or change or alteration is required by law; (ii) voluntary voluntarily liquidation of the Company or any of the Company's Subsidiaries, and/or the engagement in any arrangement with all, or a class of, the creditors of the Company and/or of the Company's Subsidiaries; (iii) any related party transaction by and between the Company or any of its Subsidiaries, on the one hand, and the Sellers Seller or any of its Affiliates (other than the Company or any of its Subsidiaries), on the other hand, which requires the approval of the Company's shareholders; (iv) any merger, substantial sale of assets merger and/or any other change in the corporate structure of the Company and/or any of the Company's Subsidiaries which requires the approval of the Company's shareholders; and (v) any other material transaction and/or action which is not in the ordinary course of the Company and/or of the Company's Subsidiaries which requires the approval of the Company's shareholders; and (vi) the Company’s issuance of any shares of common stock or Equity Securities requiring approval of the Company’s shareholders.
(b) Xxxxxxx Xx undertakes, The Seller shall not dispose of any interest in his capacity the Purchase Shares or any of them or grant any option over or create after the date hereof any Security Interest over the Purchase Shares or any of them. The Seller shall use all means required in order to obtain the Pledge Release.
(c) Subject to the duties of the Seller under applicable law as Chief Executive Officer of a controlling shareholder in the Company, the Seller shall use commercially reasonable efforts to procure (x) a meeting of the audit committee to adopt a resolution granting, at Closing, registration rights to the Purchaser for a period of five (5) years following the Closing Date on terms and conditions similar to the terms and conditions of that certain registration rights agreement, dated October 26, 1999, by and among the Seller, the Company and the other parties thereto (the "REGISTRATION RIGHTS RESOLUTION"); (y) a meeting of the Board to adopt the Registration Rights Resolution; and (z) in the event that the audit committee of the Company and the Board adopt the Registration Rights Resolution, a meeting of the shareholders of the Company and to vote in favour of the Registration Rights Resolution.
(d) Nothing in this SECTION 5.1 shall inhibit or otherwise restrict the Company or any of its Subsidiaries from conducting its business during the Interim Period either (A) in the ordinary course of business, including, taking any of the following actions:
(i) obtaining financing required for the ongoing business activity of the Company or any of its Subsidiaries, including issuance of bonds; (ii) purchasing, selling or leasing or the granting any other third party rights or security interests in or over the non-material assets of the Company or any of its Subsidiaries; (iii) declaring, setting aside or paying any Distribution with respect to any shares of the Company or any of its Subsidiaries; PROVIDED, that any Distributions of the Company to its shareholders shall be in accordance with the Company's stated dividend policy as of the date hereof; (iv) agreeing to or performing any retention bonus plan or scheme for the benefit of certain members of the management of the Company or any of its Subsidiaries in an amount not in excess of US$12,000,000; (v) submission of bids to acquire MIRS Communications Limited; (vi) granting of share options pursuant to the terms of its existing share option plan or issuing shares pursuant to exercise of options granted or to be granted pursuant to such option plan; and (vii) obtaining and maintaining any licences and permits required for the business activity of the Company or any of its Subsidiaries, or (B) subject to SECTION 5.1(e), in anticipation of and/or in preparation for the consummation of the sale and purchase of the Purchase Shares contemplated by this Agreement, including agreeing to any variation or termination of any of the outstanding arrangements or transactions made between the Seller or any of its Affiliates (other than the Company or any of its Subsidiaries) and the Company or any of its Subsidiaries whether or not set forth in SECTION 3.5 of the Seller Disclosure Schedule and on terms approved by the Board.
(e) In respect of the agreements enumerated in Schedule 5.1(c), the Seller shall use its reasonable commercial endeavours after the date of this Agreement and prior to Closing to assist and facilitate the Company in its discussions and negotiations with the respective counterparties to these agreements ("Counterparties") with a view to securing for the Company after Closing (a) the novation to the Company of the rights and obligations of the Company under the relevant agreements, where such novation is contemplated by the terms of the Related Party Transactions, or (b) where no such novation is contemplated by the agreements, the benefits, rights and obligations (subject to similar limitations and restrictions) on no less favourable terms as those applicable to the Company under the relevant agreements as if were a subsidiary of HTIL (and HTIL remains a subsidiary of Xxxxxxxxx Whampoa Limited) or as an entity named in the relevant agreements as being entitled to take the following actions on behalf benefit of the agreements (the "COMMERCIAL BENEFITS"). The Purchaser acknowledges that the Seller does not exercise Control over any of the Counterparties and the final terms and conditions upon which any Commercial Benefits are conferred on the Company prior will reflect the arm's length negotiations to closing without Purchaser’s consent:be undertaken by the Company's management.
Appears in 1 contract
Interim Covenants. (a) From the date of this Agreement until through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, except as otherwise expressly contemplated by this Agreement or the other Transaction Documents, required by Law or the regulations or requirements of any stock exchange applicable to the Mosaic Parties, disclosed in Section 7.1 of the Mosaic Disclosure Schedule, without Cargill’s written consent (which consent shall not be unreasonably withheld or delayed):
(i) none of the “Interim Period”Mosaic Parties shall approve, amend or propose to amend the certificate of incorporation or by-laws or equivalent organizational documents of any of the Mosaic Parties in a manner that would adversely affect the rights of the Mosaic Shareholders in any material respect or that would reasonably be expected to delay or impair the Transactions or the parties’ ability to comply with their obligations under the Transaction Documents;
(ii) none of the Mosaic Parties shall enter into or adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation or conversion or effect any partial liquidation, dissolution, merger, consolidation or conversion;
(iii) neither Mosaic nor M Holdings shall, nor shall Mosaic or M Holdings permit any of their respective Subsidiaries to, sell, issue, transfer, redeem, grant, pledge, hypothecate, distribute or otherwise dispose of any shares of capital stock, or any other voting securities, of any Mosaic Party, or any rights, options, warrants or securities convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of capital stock or other voting securities of, any Mosaic Party (whether or not then convertible, exchangeable, exercisable or then entitling the holder to subscribe), other than (x) the issuance by Mosaic of shares of Mosaic Common Stock pursuant to the exercise or vesting of Mosaic Awards outstanding under the Mosaic Plans and as further memorialized (y) the grant by Mosaic of Mosaic Awards (other than shares of Mosaic Common Stock) prior to the Share Number Date in the Voting Agreements executed ordinary course of business consistent with past practice, so long as no such Mosaic Awards shall vest or become exercisable in the ordinary course until after the earlier of the Closing Date and the termination of this Agreement;
(iv) neither Mosaic nor M Holdings shall, nor shall Mosaic or M Holdings permit any of their respective Subsidiaries to, accelerate the vesting or exercisability of any of the Mosaic Awards, except as may be required by the Sellersterms thereof;
(v) Mosaic shall not, and Mosaic shall not permit any of its Subsidiaries to, change the principal business of Mosaic and its Subsidiaries, taken as a form whole, from the business of which mining, producing, marketing and selling phosphate and potash fertilizer and phosphate- and potash-based animal feed products to any different line of business, or enter into any line of business that is attached not reasonably related or complementary to the business of mining, producing, marketing and selling phosphate and potash fertilizer and phosphate- and potash-based animal feed products;
(vi) Mosaic shall not, and Mosaic shall not permit any of its Subsidiaries to, acquire, or enter into any agreement to acquire any businesses, assets, product lines, business units, business operations, equity securities or other properties, including by way of merger or consolidation or otherwise, other than acquisitions (a) that would not give rise to a requirement on the part of Mosaic to file with the SEC financial statements for any acquired businesses on a Current Report on Form 8-K or in connection with any proxy statement or registration statement of Mosaic or M Holdings, and (b) that are not material to Mosaic (or, following the Merger, M Holdings) and its Subsidiaries, taken as Exhibit C hereto a whole;
(vii) Mosaic shall not, and Mosaic shall not permit any of its Subsidiaries to, sell, transfer or otherwise dispose of, “hold for sale, transfer or other disposition” or discontinue the “Voting Agreements”operations of, any businesses, assets, product lines, business units, business operations, equity securities or other properties, including by way of merger or consolidation or otherwise, unless such action or actions (a) would not give rise to a requirement on the part of Mosaic or M Holdings to file with the SEC pro forma or restated financial statements and (b) would not be material to Mosaic (or, following the Merger, M Holdings) and its Subsidiaries, taken as a whole;
(viii) none of the Mosaic Parties shall, nor shall any of them permit any of their respective Subsidiaries to, redeem, purchase or otherwise acquire any of the outstanding shares of shares of capital stock, or any other voting securities, of any Mosaic Party, or any right, options, warrants or securities convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of capital stock, or other voting securities of, any Mosaic Party (whether or not then convertible, exchangeable, exercisable or then entitling the holder to subscribe), each Seller undertakesexcept for the acquisition by any Mosaic Party of any shares of capital stock in the ordinary course in connection with the exercise or vesting of equity-based awards granted under any employee or director benefit plan or arrangement of any Mosaic Party (including in order to pay taxes or satisfy withholding obligations in respect of such taxes in connection with such exercises or vesting);
(ix) neither Mosaic nor Mosaic Holdings shall (A) declare, set aside for payment or pay any dividend on, or make any other distribution (whether in cash, stock or other form) in respect of, any shares of its capital stock (other than ordinary course quarterly cash dividends by Mosaic to its stockholders (including any ordinary course increases in such quarterly dividends)) or (B) adjust, split, combine, subdivide or reclassify any shares of its capital stock; and
(x) none of the Mosaic Parties shall authorize any of, or commit to do or enter into any Contract with respect to any of, the foregoing actions referenced in clauses (i) through (ix) of this Section 7.1(a) or publicly announce an intention to take any of the actions referenced in clauses (i) through (ix) of this Section 7.1(a).
(b) Immediately following the execution and delivery of this Agreement, M Holdings, in its capacity as a shareholder the sole member of Merger Sub, will adopt and approve this Agreement and approve the Merger, and such adoption and approval is the only vote or approval of the Company to exercise its voting rights as a shareholder holders of any class or series of the Company, equity securities of Merger Sub that is necessary to object to adopt and approve this Agreement and the passing Merger and consummate the Merger and the other Transactions.
(c) From the date of any shareholders’ resolution this Agreement through the earlier of the Company Closing Date and the termination of this Agreement in accordance with its terms, each of Mosaic and M Holdings shall timely file the reports required to be filed by it under the Exchange Act and the rules and regulations adopted by the SEC thereunder.
(d) From the date of this Agreement through the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, except as otherwise expressly contemplated by this Agreement or the other Transaction Documents (including with respect to any action taken in connection with the following matters: First Formation Offering) or required by Law, without Cargill’s written consent (which consent shall not be unreasonably withheld or delayed), Mosaic and M Holdings shall not, nor shall any Mosaic Party authorize, permit or direct any of its Subsidiaries or any of their respective Representatives to:
(i) knowingly facilitate the acquisition of shares of Mosaic Common Stock by any amendment and/or change and/or alteration Person or coordinating group (as defined in Treasury Regulation § 1.355-7(h)(4)) other than Cargill and its Subsidiaries, including by furnishing any material, non-public information concerning any Mosaic Party to any such Person or coordinating group, if, to the knowledge of Mosaic, such acquisition would result in any Person beneficially owning, directly or indirectly, ten percent (10%) or more of the Company's Organisational Documents, unless any such amendment or change or alteration is required by lawoutstanding shares of Mosaic Common Stock; or
(ii) voluntary liquidation knowingly facilitate the participation in the management or operation of Mosaic (including by becoming a director of Mosaic) by a Person or coordinating group (as defined in Treasury Regulation § 1.355-7(h)(4)) other than Cargill and its Subsidiaries who, to the knowledge of Mosaic, beneficially owns, directly or indirectly, five percent (5%) or more of the Company or any of the Company's Subsidiaries, and/or the engagement in any arrangement with all, or a class of, the creditors of the Company and/or of the Company's Subsidiaries; (iii) any related party transaction by and between the Company or any of its Subsidiaries, on the one hand, and the Sellers or any of its Affiliates (other than the Company or any of its Subsidiaries), on the other hand, which requires the approval of the Company's shareholders; (iv) any merger, substantial sale of assets and/or any other change in the corporate structure of the Company and/or any of the Company's Subsidiaries which requires the approval of the Company's shareholders; (v) any other material transaction and/or action which is not in the ordinary course of the Company and/or of the Company's Subsidiaries which requires the approval of the Company's shareholders; and (vi) the Company’s issuance of any outstanding shares of common stock or Equity Securities requiring approval of the Company’s shareholdersMosaic Common Stock.
(b) Xxxxxxx Xx undertakes, in his capacity as Chief Executive Officer of the Company, not to take the following actions on behalf of the Company prior to closing without Purchaser’s consent:
Appears in 1 contract
Interim Covenants. (a) From the date of this Agreement until the Closing Date (the “Interim Period”), and as further memorialized in the Voting Agreements executed by the Sellers, a form of which is attached as Exhibit C A hereto (the “Voting Agreements”), each Seller undertakes, in its capacity as a shareholder of the Company to exercise its voting rights as a shareholder of the Company, to object to the passing of any shareholders’ resolution of the Company with respect to the following matters: (i) any amendment and/or change and/or alteration of the Company's Organisational Organizational Documents, unless any such amendment or change or alteration is required by law; (ii) voluntary liquidation of the Company or any of the Company's Subsidiaries, and/or the engagement in any arrangement with all, or a class of, the creditors of the Company and/or of the Company's Subsidiaries; (iii) any related party transaction by and between the Company or any of its Subsidiaries, on the one hand, and the Sellers or any of its Affiliates (other than the Company or any of its Subsidiaries), on the other hand, which requires the approval of the Company's shareholders; (iv) any merger, substantial sale of assets and/or any other change in the corporate structure of the Company and/or any of the Company's Subsidiaries which requires the approval of the Company's shareholders; (v) any other material transaction and/or action which is not in the ordinary course of the Company and/or of the Company's Subsidiaries which requires the approval of the Company's shareholders; and (vi) the Company’s issuance of any shares of common stock or Equity Securities requiring approval of the Company’s shareholders.
(b) Xxxxxxx Xx Han undertakes, in his capacity as Chief Executive Officer of the Company, and He undertakes, in his capacity as the Interim Chief Financial Officer and Chief Operating Officer of the Company, not to take the following actions on behalf of the Company prior to closing without Purchaser’s consent:
(i) sell, assign or otherwise transfer any of the assets of the Company or its Subsidiaries, or cancel or compromise any debts or claims relating to such assets, other than for fair value, in the ordinary course of business, and consistent with past practice;
(ii) permit any Material Adverse Effect to occur with respect to the Company or its Subsidiaries.
(iii) except as expressly contemplated by this Agreement, authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iv) amend, waive or otherwise change, in any respect, its Organizational Documents (except as contemplated by this Agreement); or
(v) enter into any new line of business.
(c) The Sellers shall not dispose of any interest in the Purchase Shares or any of them or grant any option over or create after the date hereof any Security Interest over the Purchase Shares or any of them. The Sellers shall use all means required in order to obtain the Pledge Release.
(d) Nothing in this Section 5.1 shall inhibit or otherwise restrict any of the Subsidiaries from conducting its business during the Interim Period either (A) in the ordinary course of business, including, taking any of the following actions: (i) obtaining financing required for the ongoing business activity of any of the Subsidiaries; (ii) purchasing, selling or leasing or the granting any other third party rights or security interests in or over the non-material assets of any of the Subsidiaries; (B) in anticipation of and/or in preparation for the consummation of the sale and purchase of the Purchase Shares contemplated by this Agreement, including agreeing to any variation or termination of any of the outstanding arrangements or transactions made between the Sellers or any of its Affiliates (other than the Company or any of its Subsidiaries) and any of the Subsidiaries whether or not set forth in Section 3.7 of the Sellers Disclosure Schedule and on terms approved by the Board; provided, that in all such cases, Sellers shall give written notice to Purchaser of such actions no later than five (5) business days after the taking of such actions.
(e) The Parties agree to use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated hereby, including (i) the obtaining of all other necessary actions or inactions, waivers, consents, licenses, Permits, authorizations, Orders and approvals from Governmental Authorities and the making of all other necessary registrations and filings, (ii) the obtaining of all consents, approvals or waivers from third parties related to or required in connection with the transactions contemplated herein or required to prevent a Material Adverse Effect on the Company from occurring prior to or after the Closing Date, (iii) the satisfaction of all conditions precedent to the Parties’ obligations hereunder, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement.
(f) Each of the Parties hereto will give any notices to, make any filings with, and use its commercially reasonable efforts to obtain any authorizations, consents, and approvals of governments and governmental agencies in connection with the matters referred to herein.
(g) No transaction or arrangement shall be made, during the Interim Period, between the Sellers or any of its Affiliates (other than the Company or any of its Subsidiaries) and the Company without prior written approval from the Purchaser.
(h) The Sellers shall ensure that the Company’s seal will not be used without the written approval of the Purchaser, and shall be liable for any liabilities of the Company arising from or as a result of its use of the seal during the Interim Period.
(i) The Sellers shall ensure that the Company pays all of its expenses incurred or accrued up to and through the Closing.
Appears in 1 contract
Interim Covenants. (a) Interim Operations of the Company. From the date hereof through the Effective Time, the Company covenants and agrees that its business and the business of its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates. Without limiting the generality of the foregoing, the Company covenants and agrees as to itself and its Subsidiaries that, from the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreement or by Law):
(i) it shall not (A) issue, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries; (B) amend its certificate of incorporation or bylaws or the comparable governing instruments of any of its Subsidiaries; (C) split, combine or reclassify its outstanding shares of capital stock; or (D) repurchase, redeem or otherwise acquire any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock, except in connection with the Company Stock Plans, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(ii) neither it nor any of its Subsidiaries shall (A) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any Voting Debt or any other property or assets (other than Shares issuable pursuant to Company Options outstanding on the date hereof under the 29 35 Company Stock Plans); (B) other than in the ordinary and usual course of business, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets (including capital stock of any of its Subsidiaries); (C) incur or modify any indebtedness for borrowed money or guarantee any such indebtedness of another Person; or (D) by any means, make any acquisition of, or investment in, assets or stock (whether by way of merger, consolidation, tender offer, share exchange or other activity) of any Person;
(iii) neither it nor any of its Subsidiaries shall enter into any transaction involving a merger, consolidation, reorganization, share exchange, or similar transaction involving, or any purchase of any assets or any securities of, it or any of its Subsidiaries;
(iv) it shall not adopt any stockholder rights plan or, except as provided in Section 5.22, alter or further amend the Company Rights Plan or the Company Rights;
(v) neither it nor any of its Subsidiaries shall make any capital expenditures or other expenditures with respect to property, plant or equipment except pursuant to the capital expenditure budget set forth in Section 7.1(a)(v) of the Company Disclosure Letter;
(vi) neither it nor any of its Subsidiaries shall make any changes in accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or, except as so required, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve;
(vii) neither it nor any of its Subsidiaries shall (A) pay, discharge, settle or satisfy any claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms as in effect on the date of this Agreement, of claims, liabilities or obligations reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Company Reports filed prior to the date of this Agreement until (to the Closing Date (extent so reflected or reserved against) or incurred since the “Interim Period”), and as further memorialized date of such financial statements in the Voting Agreements executed by the Sellersordinary course of business consistent with past practice, a form of which is attached as Exhibit C hereto or (the “Voting Agreements”)B) waive any material benefits of, each Seller undertakesmodify in any adverse respect, in its capacity as a shareholder of the Company fail to exercise its voting rights as a shareholder of the Companyenforce, or consent to object to the passing of any shareholders’ resolution of the Company matter with respect to the following matters: (i) any amendment and/or change and/or alteration of the Company's Organisational Documents, unless any such amendment or change or alteration which its consent is required by law; (ii) voluntary liquidation of the Company under, any confidentiality, standstill or any of the Company's Subsidiaries, and/or the engagement in any arrangement with all, or a class of, the creditors of the Company and/or of the Company's Subsidiaries; (iii) any related party transaction by and between similar agreements to which the Company or any of its Subsidiaries, on the one hand, and the Sellers or Subsidiaries is a party;
(viii) neither it nor any of its Affiliates (other than Subsidiaries shall except in the ordinary course of business consistent with past practice, modify, amend or terminate any material contract or agreement to which the Company or any of its Subsidiaries)Subsidiaries is party, on the or knowingly waive, release or assign any material rights or claims (including any write-off or other hand, which requires the approval compromise of the Company's shareholders; (iv) any merger, substantial sale of assets and/or any other change in the corporate structure accounts receivable of the Company and/or of any of the Company's its Subsidiaries);
(ix) neither it nor any of its Subsidiaries which requires the approval of the Company's shareholders; (v) any other material transaction and/or action which is not shall except in the ordinary course of business consistent with past practice (A) enter into any material contract or agreement relating to the distribution, sale or marketing by third parties of the products, of, or 30 36 products licensed by, the Company and/or or any of its Subsidiaries or (B) license any material intellectual property rights to or from any third party;
(x) neither it nor any of its Subsidiaries shall except as required to comply with applicable law or agreements, plans or arrangements existing on the Company's Subsidiaries which requires date hereof, (A) adopt, enter into, terminate or amend any employment, severance or similar agreement or benefit plan for the approval of the Company's shareholders; and (vi) the Company’s issuance benefit or welfare of any shares of common stock current or Equity Securities requiring approval of the Company’s shareholders.
former director, officer, employee or consultant or any collective bargaining agreement, (bB) Xxxxxxx Xx undertakes, except as provided in his capacity as Chief Executive Officer of the Company, not to take the following actions on behalf Section 7.1(a)(x) of the Company prior Disclosure Letter, increase in any material respect the compensation or fringe benefits of, or pay any bonus to, any director, officer, key employee or consultant, (C) accelerate the payment, right to closing without Purchaser’s consent:payment or vesting of any compensation or benefits, including any outstanding options or restricted stock awards, (D) pay any material benefit not provided for as of the date of this Agreement under any benefit plan, (E) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any benefit plans or agreements or awards made thereunder); provided, however, that the Company shall be permitted to grant options (with exercise prices equal to the fair market value of the Company Common Stock on the respective dates of grant) to purchase Shares under the Company Stock Plans in the ordinary course of business consistent with past practice, or (F) take any action other than in the ordinary course of business consistent with past practice to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or benefit plan;
(xi) it shall not make or rescind any Tax election, settle or compromise any Tax liability or amend any Tax return;
(xii) neither it nor any of its Subsidiaries shall initiate, compromise or settle any material litigation or arbitration proceeding;
(xiii) neither it nor any of its Subsidiaries shall fail to maintain insurance at levels substantially comparable to levels existing as of the date of this Agreement;
(xiv) neither it nor any of its Subsidiaries shall fail to pay accounts payable and other obligations in the ordinary course of business consistent with past practice; or
(xv) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions or any action which would make any representation or warranty of the Company in this Agreement untrue or incorrect in any material respect, or would materially impair or prevent the occurrence of any the conditions contained in Section 7 hereof.
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