Interim Operations. During the period from the date of execution of this Agreement and ending on the earlier of the Effective Time and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement: (a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto; (b) Caza shall not, directly or indirectly, do or permit to occur any of the following: (i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement; (c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;
Appears in 4 contracts
Samples: Lock Up Agreement, Support Agreement, Lock Up Agreement
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing (such approval not to be unreasonably withheld, except with the prior written consent of the Offeror, acting reasonablydelayed or conditioned)), and except as otherwise expressly permitted by this Agreement or as required by law a Governmental Entity or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants applicable Laws, the business of it and agrees that its business Subsidiaries shall be conducted only in all material respects in the usual and ordinary course of business and, to the extent consistent with past practicesthe foregoing, the Company and it its Subsidiaries shall use all their respective commercially reasonable efforts to preserve their business organizations substantially intact, maintain satisfactory relationships with Governmental Entities, NERC, PJM, customers and preserve its business, assets and advantageous suppliers having significant business relationships. Caza shall consult dealings with the Offeror in respect of its ongoing business and affairs them and keep available the Offeror apprised services of all material developments relating thereto;
their key employees; provided, however, that no action taken by the Company or its Subsidiaries with respect to matters specifically addressed by clauses (bi)-(xx) Caza of this Section 6.1(a) shall not, directly or indirectly, do or permit to occur any be deemed a breach of this sentence unless such action would constitute a breach of such other provision. In furtherance of the followingforegoing, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly permitted by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld, delayed or conditioned), (C) as is required by applicable Law or any Governmental Entity or (D) as set forth in Section 6.1(a) of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) amend adopt any change in its constating documents; certificate of incorporation or bylaws or other applicable governing instruments;
(ii) issue merge or consolidate the Company or any of its Subsidiaries with any other Person or restructure, reorganize or completely or partially liquidate the Company or any of its Subsidiaries, except for any such transactions among wholly-owned Subsidiaries of the Company;
(iii) acquire (including by merger, consolidation or acquisition of equity interests or assets or any other business combination) (A) any other Person or any organization or division of any other Person or (B) any assets outside of the ordinary course of business, other than acquisitions (1) pursuant to Contracts in effect as of the date of this Agreement (copies of which have been made available to Parent), (2) made in connection with any transaction solely between the Company and a wholly-owned Subsidiary of the Company or between wholly-owned Subsidiaries of the Company or (3) that would be permissible under clause (ix) below;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock or other equity interests of the Company or any of its Subsidiaries (other than on (A) the issuance of Shares upon the vesting, exercise or surrender settlement of currently outstanding Caza OptionsCompany RSUs, Company PSUs, and Company Awards (and dividend equivalents thereon, if applicable) or (B) the issuance of shares by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible or exchangeable into or exchangeable exercisable for any shares of such capital stock or exercisable forother equity interests, or otherwise evidencing a right any options, warrants or other rights of any kind to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any shares of its outstanding such capital stock or such convertible or exchangeable securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; ;
(v) adopt a plan make any loans, advances or capital contributions to or investments in any Person (other than among the Company and any direct or indirect wholly-owned Subsidiary of liquidation the Company or resolutions providing for among the liquidationCompany’s wholly-owned subsidiaries) in excess of $10,000,000 in the aggregate other than loans, dissolutionadvances, merger, consolidation capital contributions or reorganization investments made in the ordinary course of Caza; business;
(vi) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (except for (A) regular quarterly dividends paid to holders of Shares in an amount and on a schedule consistent with the foregoing except Company’s past practices and not in excess of $0.27 per Share per quarter, (B) a “stub period” dividend to stockholders of record as otherwise permitted of immediately prior to the Effective Time equal to the product of (x) the number of days from the record date for payment of the last quarterly dividend paid by the Company prior to the Effective Time through and including immediately prior to the Effective Time and (y) a daily dividend rate determined by dividing the amount of the last quarterly dividend prior to the Effective Time by ninety-one (91), and (C) dividends paid by any direct or contemplated by this Agreementindirect wholly-owned Subsidiary to the Company or to any other direct or indirect wholly-owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(cvii) except for transactions disclosed in among the Disclosure LetterCompany and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, Caza will notreclassify, and will not permit any of its subsidiaries tosplit, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, do any of the following its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than the retention or acquisition of any Shares tendered by current or former employees or directors in order to pay Taxes in connection with the vesting, exercise or settlement of Company RSUs, Company PSUs, and Company Awards (and dividend equivalents thereon, if applicable));
(viii) incur, assume or otherwise become liable for any indebtedness for borrowed money or guarantee such indebtedness of another Person (other than of a wholly-owned Subsidiary of the Company), or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, other than (A) in the ordinary course of business (including to fund expenditures permissible under clauses (iii), (v) and (ix) of this Section 6.1(a)) or (B) other indebtedness in an aggregate principal amount not to exceed $50,000,000 outstanding at any time;
(ix) except for expenditures related to operational emergencies, equipment failures or outages make or authorize any capital expenditure in excess of $100,000,000 in the aggregate during any calendar year;
(x) make any material changes with respect to financial accounting policies or procedures, except as contemplated required by GAAP;
(xi) other than with respect to Rate Cases and the regulatory approval process, which are addressed in Section 6.5 and Transaction Litigation, which is addressed in Section 6.14, settle, release, waive or compromise any litigation claim, or other pending or threatened proceedings by or before a Governmental Entity if such settlement, release, waiver or compromise (A) with respect to the payment of monetary damages, involves the payment by the Company or any of its Subsidiaries of monetary damages that together with all other settlements, releases, waivers or compromises by the Company or any of its Subsidiaries exceed $50,000,000 individually or in the aggregate during any calendar year, net of any amount covered by insurance or third-party indemnification or (B) with respect to any non-monetary terms and conditions therein, imposes or requires actions that would or would be reasonably likely to have a material effect on the continuing operations of the Company or any of its Subsidiaries or Parent or any of its Subsidiaries after the Closing;
(xii) other than with respect to the Rate Cases, initiate, file or pursue any rate cases, or make any public announcement regarding an intent to file any rate cases;
(xiii) fail to make any regulatory filings required by Law, other than those regulatory filings that are otherwise addressed by this Agreement Agreement, except to the extent such failure would not have a material adverse effect on the continuing operations of the Company or any of its Subsidiaries or Parent or any of its Subsidiaries after the Closing;
(xiv) make, revoke or amend any material Tax election, enter into any closing agreement, settlement or compromise of any claim or assessment with respect to any material Tax liability (unless such closing agreement, settlement or compromise is not materially greater than the reserves established in accordance with GAAP in respect of the claim or assessment that is the subject of such closing agreement, settlement or compromise), amend any material Tax Return, surrender a claim for a material refund of Taxes or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(xv) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any material amount of assets, product lines or businesses of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, other than sales and dispositions of inventory, supplies and other assets (A) in the ordinary course of business or (B) pursuant to commitments entered into Contracts in effect prior to the date of this Agreement and disclosed (copies of which have been made available to Parent);
(xvi) except as required pursuant to Contracts or Benefit Plans in effect prior to the date of this Agreement (including the Company Change in Control Severance Plan), (A) grant any equity awards, or grant or provide any material severance or material termination payments or benefits to any executive employee of the Company or its Subsidiaries who have individual employment agreements with severance or termination provisions or who participate in the Change of Control Severance Plan (“Executive Employees”), (B) accelerate or materially increase the compensation or employee benefits of any Executive Employee, except for annual merit-based or promotion-based pay increases in the ordinary course of business, (C) establish, adopt, terminate or materially amend any Benefit Plan (other party than routine changes to welfare plans or any changes to Benefit Plans that would not result in writing or otherwise disclosed more than a de minimis increase to the Company’s costs under such Benefit Plans), including any severance benefit plan or (D) accelerate or materially increase the compensation of other employees of the Company or its Subsidiaries, except for (1) merit-based or promotion-based pay increases in the ordinary course of business, (2) acceleration or increases required by any CBA, or (3) any acceleration or increase done after consultation with Parent;
(xvii) enter into any Company Material Contract that contains a change of control or similar provision that would require a payment to any Person counterparty thereto in connection with the consummation of the Merger that would not otherwise be due;
(xviii) grant or incur any new Lien material to the Company and its Subsidiaries, other than (A) pledges or deposits by the Company or any of its Subsidiaries in the ordinary course of business under workmen’s compensation Laws, unemployment insurance Laws or similar Laws; (B) good faith deposits in connection with Contracts (other than for the payment of indebtedness) to which the Company or one of its Subsidiaries is a party, without or (C) in connection with securing indebtedness permitted to be incurred under the prior consent terms of this Agreement by granting or incurring Liens on the assets of the other partyutility Subsidiaries of the Company, such consent not to be unreasonably withheld: (i) sellin each case, pledge, dispose of or encumber any assets, except in the ordinary course of business; or
(iixix) expend agree, authorize or commit to expend do any amounts of the foregoing.
(b) Nothing contained in respect of capital expensesthis Agreement is intended to give Parent, excluding certain expenditures which may be agreed todirectly or indirectly, from time the right to time, by control or direct the Offeror in writing, which for greater certainty, shall not be subject Company’s or its Subsidiaries’ operations prior to the covenants set forth Effective Time, and nothing contained in this Section 7.1(c); (iii) reorganizeAgreement is intended to give the Company, amalgamate, merge directly or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible forindirectly, the obligation right to control or direct Parent’s or its Subsidiaries’ operations. Prior to the Effective Time, each of any other individual or entityParent and the Company shall exercise, or make any loans or advances;consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Exelon Corp), Agreement and Plan of Merger (Potomac Electric Power Co), Merger Agreement (Potomac Electric Power Co)
Interim Operations. During the period from From the date of execution of this Agreement and ending on until the earlier Tender Offer Purchase Time, except as set forth in Section 5.1 of the Effective Time and the termination Company Disclosure Schedule or as expressly contemplated by any other provision of this Agreement, except with unless the prior written consent of Parent has consented in writing thereto, the Offeror, acting reasonablyCompany shall, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreementshall cause each of its subsidiaries to:
(a) Caza covenants and agrees that conduct its business shall be conducted and operations only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretopractice;
(b) Caza shall notuse reasonable efforts to preserve intact the business, directly or indirectlyorganization, do or permit to occur any goodwill, rights, licenses, permits and franchises of the following:Company and its subsidiaries and maintain their existing relationships with customers, suppliers and other Persons having business dealings with them;
(ic) use reasonable efforts to keep in full force and effect adequate insurance coverage and maintain and keep its material Company Assets in good repair, working order and condition, normal wear and tear excepted;
(d) not amend or modify its constating respective Certificate of Incorporation, Bylaws, partnership agreement or other charter or organizational documents; ;
(iie) issue (other than on exercise or surrender pursuant to the stock purchase right identified as Item 1 in Section 3.2(a) of currently outstanding Caza Options)the Disclosure Schedule and other than up to 20,000 Company Stock Options that may be issued under the 2000 Stock Option Plan in connection with the Company's fair share plan, not authorize for issuance, issue, sell, grant, sell or deliver, pledge or encumber or agree or commit to issue, sell, grant, sell deliver, pledge or pledge encumber any securities shares of Cazaany class or series of capital stock of the Company or any of its subsidiaries or any other equity or voting security or equity or voting interest in the Company or any of its subsidiaries, or any securities convertible into or exercisable or exchangeable for any such shares, securities or exercisable forinterests, or otherwise evidencing a right any options, warrants, calls, commitments, subscriptions or rights to acquirepurchase or acquire any such shares, securities or interests (other than issuances of Caza; (iii) redeem, purchase or otherwise acquire any Shares upon exercise of its outstanding securities, except as permitted pursuant Company Stock Options granted prior to the terms thereof or as permitted date of this Agreement to directors, officers, employees and consultants of the Company in accordance with or contemplated by this Agreement; the Company Stock Plan as currently in effect);
(ivf) not (i) split, combine or reclassify any shares of its securities; stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its stock or (vii) adopt a plan in solely the case of liquidation or resolutions providing for the liquidationCompany, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend dividends on, or make other distribution or payment (whether in cash shares or property) distributions in respect of its outstanding securities without the consent of the Offerorof, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as Company's stock, repurchase, redeem or otherwise permitted acquire, or contemplated by this Agreementagree or commit to repurchase, redeem or otherwise acquire, any shares of stock or other equity or debt securities or equity interests of the Company or any of its subsidiaries;
(cg) except as contemplated by Section 2.10, not amend or otherwise modify the terms of any Company Stock Options or the Company Option Plans, the effect of which shall be to make such terms more favorable to the holders thereof or Persons eligible for transactions disclosed participation therein;
(h) other than normal salary increases in the Disclosure Letterordinary course of business consistent with past practice, Caza will notnot (i) materially increase the compensation payable or to become payable to any directors, and will not permit officers or employees of the Company or any of its subsidiaries except arrangements in connection with employee transfers and agreements with new employees having a salary of greater than $75,000, (ii) grant any severance or termination pay to, directly or indirectlyenter into any employment or severance agreement with any director or officer or employee (other than in the ordinary course of business) of the Company or any of its subsidiaries, do or (iii) establish, adopt, enter into or amend in any material respect or take action to accelerate any material rights or material benefits under any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director or officer or employee (other than in the ordinary course of business) of the Company or any of its subsidiaries;
(i) not acquire or agree to acquire (including, without limitation, by merger, consolidation, or acquisition of stock, equity securities or interests, or assets) any corporation, partnership, joint venture, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets of any other Person outside the ordinary course of business consistent with past practice or any interest in any real properties (other than in the ordinary course of business);
(j) not incur, assume or guarantee any indebtedness for borrowed money (including draw-downs on letters or lines of credit) or issue any notes, bonds, debentures, debt instruments, evidences of indebtedness or other debt securities of the Company or any of its subsidiaries or any options, warrants or rights to purchase or acquire any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other partysame, without the prior consent of the other party, such consent not to be unreasonably withheld: except for (i) renewals of existing bonds and letters of credit in the ordinary course of business not to exceed $1,000,000 in the aggregate; (ii) incurring indebtedness for borrowed money in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $100,000 or (iii) advances in the ordinary course pursuant to (A) working capital lines of credit in an amount not to exceed $15,000,000 in the aggregate and (B) warehouse lines of credit set forth in Section 3.16(a)(v) of the Company Disclosure Schedule, or any renewal or replacement thereof;
(k) not sell, pledgelease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any material properties or assets of the Company or encumber any assetsof its subsidiaries, other than in the ordinary course of business;
(l) not authorize or make any capital expenditures (including by lease) in excess of $500,000 in the aggregate other than the ordinary course of business for the Company and all of its subsidiaries;
(m) not make any material change in any of its accounting or financial reporting (including tax accounting and reporting) methods, principles or practices, including with respect to the method of accounting for loans held for sale or premiums for risk management instruments, or recognizing loan origination income, net premium income, or gains or losses on risk management instruments, except as may be required by a change in law or in GAAP;
(n) not make any material tax election or settle or compromise any material United States or foreign tax liability;
(o) except in the ordinary course of business; business consistent with past practice, not amend, modify or terminate any material Contract or waive, release or assign any material rights or claims thereunder;
(iip) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than in the ordinary course of business, make not enter into contracts that reasonably would involve financial obligations by the Company exceeding $100,000;
(q) not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any investmentof its subsidiaries;
(r) fail to report any facts, either by purchase of shares circumstance or securitiesevents that has resulted in any insurance claims that, contributions of capital individually or in the aggregate, would have a Material Adverse Effect; and
(other than s) except as to subsidiariessubsections (a), property transfer(b) and (c) of Section 5.1, or, except not agree or commit in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse writing or otherwise as an accommodation become responsible for, to do any of the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 4 contracts
Samples: Merger Agreement (Prism Acquisition Subsidiary Inc), Merger Agreement (Royal Bank of Canada), Merger Agreement (Prism Financial Corp)
Interim Operations. During the period from the date of execution of this Agreement and ending on the earlier of the Effective Time and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza The Company covenants and agrees that as to itself and its business shall be conducted only in the usual and ordinary course of business consistent with past practicesSubsidiaries that, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to after the date of this Agreement and disclosed prior to the Effective Time (unless Parent shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreement) and except as required by applicable Law, (a) the business of the Company and its Subsidiaries shall be conducted in the ordinary and usual course, (b) each of the Company and its Subsidiaries shall use its reasonable best efforts to preserve its business organizations and assets intact and maintain its rights, franchises, powers and privileges and its existing relations and goodwill with Governmental Authorities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the Company and its Subsidiaries’ present employees and agents, and (c) subject to Section 5.10, the Company and its Subsidiaries shall take no action that would reasonably be expected to adversely affect or materially delay the ability of the Company to obtain any necessary approvals of any Regulatory Authorities or other party Governmental Authority required for the transactions contemplated hereby, to perform its covenants and agreements under this Agreement or to consummate the transactions contemplated hereby on a timely basis. Without limiting the generality of and in furtherance of the foregoing, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required by this Agreement or as required by Law, (B) as Parent may approve in writing or otherwise disclosed to the other party, without the prior consent of the other party, (such consent approval not to be unreasonably withheld: withheld or delayed) or (iC) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants as set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition 5.01 of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible forCompany Disclosure Schedule, the obligation of any other individual or entity, or make any loans or advances;Company shall not and shall not permit its Subsidiaries to:
Appears in 4 contracts
Samples: Merger Agreement (CU Bancorp), Merger Agreement (Pacwest Bancorp), Merger Agreement (Square 1 Financial Inc)
Interim Operations. During Except as otherwise contemplated by this Agreement or as set forth in Section 5.01 of the Company Disclosure Schedule or as consented to in writing by Parent, the Company covenants and agrees that during the period from the date of execution this Agreement to the Effective Time (or until termination of this Agreement in accordance with Article 7 hereof):
(a) the business and ending on the earlier operations of the Effective Time Company and its Subsidiaries shall be conducted, and the termination books and records of the Company and its Subsidiaries shall be maintained, only in the ordinary course of business and the Company and its Subsidiaries shall use their commercially reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with their material customers, suppliers, licensors, licensees, advertisers, distributors and other material third parties having business dealings with them and to preserve the goodwill of their respective businesses;
(b) the Company shall not, and shall not permit any of its Subsidiaries to, (i) authorize for issuance, issue, deliver, sell or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stock or the capital stock of any of its Subsidiaries, any other securities or any securities convertible or exercisable into, or any rights, warrants or options to acquire, any such shares, securities or convertible securities or any other securities or equity equivalents (including, without limitation, stock appreciation rights or phantom interests), except for issuances of Common Shares upon the exercise of Options outstanding as of the date hereof; (ii) repurchase, redeem or otherwise acquire any shares of the capital stock or other equity interests of the Company or any of its Subsidiaries (including, without limitation, securities exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, capital stock or other equity interests of the Company or any of its Subsidiaries); or (iii) amend, modify or waive any term of any outstanding security of the Company or any of its Subsidiaries, except (A) as required by this Agreement, (B) as set forth in Section 5.01(b) of the Company Disclosure Schedule, in connection with accelerating the vesting schedules of the Options to the extent required by the Stock Plans or the agreements pursuant to which such Options were granted or (C) in connection with terminating the Options and the Stock Plans;
(c) the Company shall not (i) sell, transfer or pledge, or agree to sell, transfer or pledge, any equity interest owned by it in any of its Subsidiaries or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any of its Subsidiaries, (ii) amend or otherwise change its certificate of incorporation or bylaws or permit any of its Subsidiaries to amend its articles of incorporation, or bylaws or (iii) split, combine or reclassify any shares of its capital stock, and shall not permit any of its Subsidiaries to split, combine or reclassify any shares of its capital stock;
(d) other than quarterly dividends not in excess of $0.075 per Common Share declared and paid consistent with past practices, the Company shall not, and shall not permit any of its Subsidiaries to, declare, set aside or pay any dividends on (whether in cash, stock or other property), or make any other distributions in respect of, any of its capital stock (except for dividends paid by direct or indirect wholly owned Subsidiaries to the Company or to other wholly owned Subsidiaries of the Company consistent with past practices);
(e) neither the Company nor any of its Subsidiaries shall (i) grant or agree to any increase in any manner the compensation or benefits of any current or former director, officer or employee, except increases in the ordinary course of business consistent with past practice, increases and bonuses expressly required under existing employment agreements, bonus plans and other agreements and arrangements listed or described in Section 5.01(e) of the Company Disclosure Schedule and except in connection with accelerating the vesting schedules of the Options and terminating the Options and the Stock Plans, (ii) enter into any new or materially amend any existing Contract, transaction, commitment or arrangement with any current or former director, officer, employee or affiliate of the Company or any of its Subsidiaries, or (iii) except as set forth in Section 5.01(e) of the Company Disclosure Schedule, as may be required to comply with applicable Law and as provided or otherwise contemplated in this Agreement (including, without limitation, Section 2.02 hereof), become obligated under any Benefit Plan that was not in existence on the date hereof or amend or modify or terminate, or pay any benefit that is not required by, any Benefit Plan or other employee benefit plan or any agreement, arrangement, plan or policy for the benefit of any current or former director, officer or employee in existence on the date hereof;
(f) the Company shall not, and shall not permit any of its Subsidiaries to, (x) enter into any new line of business, or acquire or agree to acquire, including, without limitation, by merging or consolidating with, or purchasing the assets or capital stock or other equity interests of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof other than acquisitions or purchases made with the prior written consent of the Offeror, acting reasonablyParent (each an “Approved Acquisition”) and other than non-taxable transfers by or among the Company and the Company’s Subsidiaries; or (y) establish or acquire (i) any Subsidiary other than wholly-owned Subsidiaries or (ii) Subsidiaries organized outside of the United States and its territorial possessions;
(g) the Company shall not, and except shall not permit any of its Subsidiaries to, (x) incur, assume, be responsible for or pre-pay any Indebtedness, enter into any agreement to, incur, assume, be responsible for or pre-pay any Indebtedness, guarantee, or agree to guarantee, any such Indebtedness or Liabilities or obligations of another person, issue or sell, or agree to issue or sell, any debt securities or options, warrants or calls or rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of others, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing; or (y) sell, lease, license or subject to any Lien or otherwise dispose of, or agree to sell, lease or subject to any Lien or otherwise dispose of, any of its properties or assets in excess of $25,000 individually or $50,000 in the aggregate other than (i) pursuant to existing contracts and commitments described in Section 5.01(g) of the Company Disclosure Schedule, (ii) immaterial properties or assets (or immaterial portions of properties or assets described in Section 5.01(g) of the Company Disclosure Schedule), (iii) Permitted Liens, (iv) Liens relating to Taxes that are not yet due and payable or otherwise being contested in good faith and as otherwise required to which appropriate reserves have been established by law the Company in accordance with GAAP and (v) other than non-taxable transfers by or expressly permitted among the Company and the Company’s Subsidiaries;
(h) neither the Company nor any of its Subsidiaries shall adopt or put into effect a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than any transaction specifically contemplated by this Agreement:);
(ai) Caza covenants except as set forth in Section 5.01(i) of the Company Disclosure Schedule, the Company shall not, and agrees that shall not permit any of its business shall be conducted only in Subsidiaries to, (i) enter into, or materially amend, modify or supplement any Contract outside the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with practice under which the Offeror in respect Company or any of its ongoing business and affairs and keep Subsidiaries shall have monetary obligations in excess of $25,000 (except as may be necessary for the Offeror apprised Company to comply with its obligations hereunder), or (ii) waive, release, grant, assign, modify or transfer any of all its material developments relating theretorights or claims (whether such rights or claims arise under a Contract or otherwise);
(bj) Caza the Company shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will shall not permit any of its subsidiaries Subsidiaries to, directly authorize or indirectly, do make any of the following capital expenditures (other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the hereof or other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except planned capital expenditures in the ordinary course of business; (iibusiness consistent with past practices disclosed in Section 5.01(j) expend of the Company Disclosure Schedule by category) or commit make any commitments with respect to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or planned capital expenditures other business organization or division thereof, or, except for investments in securities made than in the ordinary course of businessbusiness consistent with past practices in excess of $500,000 in the aggregate;
(k) the Company shall, and shall cause its Subsidiaries to, (i) continue in force insurance with good and responsible insurance companies adequately covering risks of such types and in such amounts as are consistent with the Company’s and its Subsidiaries’ past practices, (ii) use reasonable best efforts not to permit any insurance policy naming it as beneficiary or loss payable payee to be canceled or terminated, (iii) maintain all Leased Real Property (including, without limitation, the furniture, fixtures, equipment and systems therein) in its current condition in all material respects, subject to reasonable wear and tear and subject to any casualty or condemnation and Permitted Liens, subject to the expiration of real property leases in accordance with their terms, and (iv) pay, prior to the imposition of any Lien or material penalty all taxes, water and sewage rents, assessments and insurance premiums affecting such real property or contest them in good faith;
(l) except as set forth in Section 5.01(l) of the Company Disclosure Schedule, the Company shall not, and shall not permit any of its Subsidiaries to, (i) materially amend any currently existing labor or collective bargaining agreement, memorandum or understanding, grievance settlement or any other agreement or commitment to or relating to any labor union, or (ii) enter into any labor or collective bargaining agreement, memorandum or understanding, grievance settlement or any other agreement or commitment to or relating to any labor union which is different in any material respect with any currently existing collective bargaining agreement, memorandum or understanding, grievance settlement or commitment, except, in each case, as required by Law;
(m) the Company shall not, and shall not permit any of its Subsidiaries to, change any of the accounting policies, practices or procedures (including tax accounting policies, practices and procedures) used by the Company or any of its Subsidiaries as of the date hereof, except as may be required as a result of a change in applicable Law or in GAAP;
(n) the Company shall not, and shall not permit any of its Subsidiaries to, take, or agree or commit to take, any action that would, or is reasonably likely to, make any investmentrepresentation or warranty of the Company contained in this Agreement inaccurate in any material respect at, either by purchase or as of shares any time prior to, the Effective Time or securitiesresult in any of the conditions set forth in Article 6 not being satisfied, contributions or omit, or agree to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any material respect at any such time or to prevent any such condition from not being satisfied;
(o) the Company shall not, and shall not permit any of capital its Subsidiaries to, make or change any material tax election or change an annual accounting period with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any Tax claim, assessment or liability relating to the Company or any of its Subsidiaries, or surrender any right to claim a refund of Taxes, except as set forth in Section 5.01(o) of the Company Disclosure Schedule, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action, or omit to take any action relating to the filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action or omission would have the effect of materially increasing the present or future Tax liability or materially decreasing any present or future Tax benefit of the Company or any of its Subsidiaries;
(p) the Company shall (i) use its commercially reasonable efforts to, and shall cause its Subsidiaries to use their respective commercially reasonable efforts to, prevent the termination of any Contract with any Significant Customer, (ii) not, and shall cause its Subsidiaries not to, amend or modify any Contract with any Significant Customer, other than on terms substantially equivalent to, or more beneficial on balance to subsidiaries)the Company or any of its Subsidiaries than, property transferthe terms of such Contract prior to the making of such amendment or modification, orand (iii) not, except and shall cause its Subsidiaries not to, enter into, or materially amend, modify or supplement, any Lease or other Material Contract under which the costs or obligations of the Company or any of its Subsidiaries resulting from such amendment, modification or supplement would exceed $25,000 per annum individually or $100,000 per annum for all such amendments, modifications and supplements in the ordinary course aggregate; and
(q) the Company shall not, and shall not permit any of businessits Subsidiaries to, purchase agree or commit to do any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (National Home Health Care Corp), Agreement and Plan of Merger (National Home Health Care Corp), Merger Agreement (National Home Health Care Corp)
Interim Operations. During (a) From and after the period from the date of execution and delivery of this Agreement and ending on until the earlier of the Effective Time and the termination of this Agreement, except with the prior written consent Agreement and abandonment of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically transactions contemplated by this Agreement:
Agreement pursuant to Article IX, except (ai) Caza covenants and agrees that its business as otherwise required, contemplated or permitted by this Agreement or as required by a Governmental Entity or applicable Law, (ii) as set forth in Section 7.1(a) of the Company Disclosure Schedule or (iii) as Parent shall otherwise consent in writing (which consent shall not be conducted only in unreasonably withheld, delayed or conditioned), the usual and ordinary course of business consistent with past practicesCompany (A) shall, and it shall cause its Subsidiaries to, use all commercially reasonable efforts to conduct their respective businesses in the Ordinary Course of Business in all material respects, (B) shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to (x) maintain all existing relationships and preserve its businessgoodwill with key customers, assets suppliers and advantageous other persons having material business relationships. Caza shall consult relationships with the Offeror in respect Company and its Subsidiaries and (y) keep available the services of the officers and key employees of the Company and its ongoing business Subsidiaries, and affairs and keep (C) without limiting the Offeror apprised generality of all material developments relating thereto;
(b) Caza the foregoing, shall not, directly or indirectly, do or permit to occur any of the followingand shall cause its Subsidiaries not to:
(i) amend adopt or propose any change in its constating documents; Organizational Documents;
(ii) issue merge or consolidate with any other Person, except for any such transactions solely among Wholly Owned Subsidiaries of the Company,
(iii) adopt or enter into a plan of restructuring, reorganizing, dissolving, recapitalizing, complete or partial liquidation or similar transaction;
(iv) enter into any agreements or arrangements imposing material changes or restrictions on its properties, assets, operations or businesses;
(v) acquire or agree to acquire by merger, consolidation, acquisition of stock, equity or assets or otherwise, any business, Person, division, properties or assets from any other Person, other than purchases or acquisitions of assets in the Ordinary Course of Business with a fair market value or purchase price not in excess of $1 million in any individual transaction or $2 million in the aggregate;
(vi) transfer, sell, lease, sublease, license, pledge, mortgage, assign, divest, cancel or otherwise dispose of, or incur, permit or suffer to exist the creation of any Encumbrance (other than on exercise any Permitted Encumbrance) upon any properties or surrender assets (excluding Intellectual Property Rights) material to the Company, except in connection with (A) sales of currently outstanding Caza Options)obsolete assets or (B) sales, leases, licenses or other dispositions of assets, in each case with a fair market value (as reasonably determined by the Company) not in excess of $500,000 in any individual transaction or $1 million in the aggregate;
(vii) issue, deliver, sell, pledge, dispose of, grant, sell transfer, lease, license, guarantee, Encumber or pledge otherwise enter into any Contract or agree understanding with respect to issuethe voting of or transfer any shares of capital stock of the Company or capital stock or other equity or equity-based interests of any of its Subsidiaries, grant, sell securities convertible or pledge exchangeable into or exercisable for any securities such shares of Cazacapital stock or other equity interests, or securities any options, warrants or other rights of any kind to acquire any such shares of capital stock, other equity interests or such convertible into or exchangeable securities (other than (A) the delivery of any Common Shares upon (1) the conversion of either the Preferred Shares (including in respect of dividends accumulated on the Preferred Shares) in accordance with the terms of the Preferred Shares or exercisable for(2) the conversion of the Company Notes in accordance with the Indenture and the exercise of the Capped Call Transactions in accordance with the Capped Call Confirmations (B) the issuance of Preferred Shares in connection with the payment of dividends on the Preferred Shares in accordance with the terms of the Preferred Shares or (B) the issuance of shares of such capital stock, other equity securities or convertible or exchangeable securities (1) by a Wholly Owned Subsidiary of the Company to the Company or another Wholly Owned Subsidiary of the Company, (2) in respect of Company Equity Awards outstanding as of the date of this Agreement in accordance with their terms and, as applicable, the Stock Plans in effect as of the Capitalization Time or (3) pursuant to the ESPP in accordance with its terms and subject to Section 4.3(g));
(viii) make any loans, advances, guarantees or capital contributions to or investments in any Person in excess of $200,000 in the aggregate (other than between the Company and any of its Wholly Owned Subsidiaries in the Ordinary Course of Business);
(ix) declare, set aside, establish a record date for accrue, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise evidencing a right with respect to acquireany of its capital stock or other equity interests (and for the avoidance of doubt, securities excluding the Company Notes) of Caza; the Company or its Subsidiaries, except for (iiiA) dividends paid by any Wholly Owned Subsidiary to the Company or to any other Wholly Owned Subsidiary of the Company or (B) dividends payable to the holders of Preferred Shares, payable in cash or Preferred Shares, in accordance with the terms of the Preferred Shares;
(x) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant (or offer to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to do any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries toforegoing), directly or indirectly, do any of the following its capital stock, other equity interests or securities convertible or exchangeable into or exercisable for any shares of its capital stock or other equity interests, other than (A) the withholding of Common Shares to satisfy the payment of the exercise price on the exercise of a Company Option or withholding Tax obligations upon the exercise, vesting or settlement of Company Equity Awards outstanding as contemplated by this Agreement or pursuant to commitments entered into prior to of the date of this Agreement and disclosed to Agreement, in each case, in accordance with their terms and, as applicable, the other party Stock Plans as in writing or otherwise disclosed to the other party, without the prior consent effect as of the other party, such consent not Capitalization Time and (B) pursuant to be unreasonably withheld: an exercise of the Capped Call Transactions in accordance with their terms;
(i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (vxi) incur or assume any indebtedness for borrowed money, guarantee any indebtedness for borrowed money or enter into a “keep well” or similar arrangement in respect of indebtedness for borrowed money except for any other material liability such indebtedness not to exceed $2.5 million individually or obligation $5 million in the aggregate;
(xii) incur, make or issue authorize any debt securities payment of, or assume, guarantee, endorse accrual or otherwise as an accommodation become responsible commitment for, the obligation of any other individual or entitycapital expenditures, or make any loans obligations or advancesliabilities in connection therewith except as contemplated by or reasonably related to, and which shall not exceed 107.5% of the aggregate amounts set forth in, the Company’s capital budget set forth in Section 7.1(a)(xii) of the Company Disclosure Schedule;
(xiii) enter into, terminate or materially amend any Contract pursuant to which the Company or any of its Subsidiaries purchase from a third party service provider Software (“Third Party IT Contracts”) (other than in the Ordinary Course of Business with respect to any such Contract that involve aggregate annual payments of less than $300,000);
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Benefitfocus, Inc.), Merger Agreement (Benefitfocus, Inc.), Merger Agreement (Benefitfocus, Inc.)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably(unless Parent shall otherwise approve in writing, and except as otherwise expressly authorized by this Agreement or as set forth in Section 6.1 of the Company Disclosure Letter) and except as required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants applicable Laws, the business of it and agrees that its business Subsidiaries shall be conducted only in the ordinary and usual course and, to the extent consistent therewith, it and ordinary course of business consistent with past practices, and it its Subsidiaries shall use all commercially their respective reasonable best efforts to preserve their business organizations intact and maintain existing relations and preserve its businessgoodwill with Governmental Entities, assets customers, suppliers, creditors, lessors, employees and advantageous business relationships. Caza shall consult with associates and keep available the Offeror in respect services of its ongoing business and affairs its Subsidiaries’ current employees and keep the Offeror apprised of all material developments relating thereto;agents.
(b) Caza shall notWithout limiting the generality of Section 6.1(a) and in furtherance thereof, directly from and after the date hereof until the Acceptance Time and, if the 90% Requirement is satisfied at any time from and after the Acceptance Time, from and after such time that the 90% Requirement is satisfied until the Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as Parent may approve in writing, or indirectly, do or permit to occur any (C) as set forth in Section 6.1 of the followingCompany Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) amend its constating documents; adopt any change in the certificate of incorporation or by-laws or other applicable governing instruments of any Subsidiary of the Company;
(ii) issue merge or consolidate any Subsidiary of the Company with any other Person, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on the Company’s or any of its Subsidiaries’ assets, operations or businesses;
(other than on exercise or surrender of currently outstanding Caza Options)iii) issue, sell, pledge, dispose of, grant, sell transfer, encumber, or pledge or agree to issueauthorize the issuance, sale, pledge, disposition, grant, sell transfer, or pledge encumbrance of, any securities shares of Cazacapital stock of the Company or any of its Subsidiaries, or securities convertible or exchangeable into or exchangeable or exercisable forfor any shares of such capital stock, or otherwise evidencing a right any options, warrants or other rights of any kind to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any shares of its outstanding such capital stock or such convertible or exchangeable securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by the terms of the grant of any outstanding and exercisable Company Option that was issued prior to the date of this Agreement; ;
(iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing except for the liquidationCompany’s declaration and payment of regular quarterly cash dividends consistent with past practice and in any event not in excess of $0.52 per share with usual record and payment dates for such dividends in accordance with past dividend practice of the Company, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreementits capital stock;
(cv) except for transactions disclosed in the Disclosure Letterreclassify, Caza will notsplit, and will not permit any of its subsidiaries tocombine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, do any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(vi) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;
(vii) settle any material litigation or other material proceedings before a Governmental Entity;
(viii) (A) make or rescind any material election relating to Taxes; (B) file any amended income Tax Return or material claim for refund; (C) make any material change in any method of accounting, keeping of books of account or accounting practices or in any method of Tax accounting of the following Company or any of its Subsidiary unless required by GAAP or applicable Law; (D) enter into or agree to any private letter ruling, closing agreement or similar ruling or agreement with the IRS or any other than taxing authority or settle any audit or proceeding with respect to any material amount of Taxes owed; or (E) file its federal income Tax Return for any fiscal year ending on or after December 31, 2007 without providing Parent reasonable opportunity to review and comment on such Tax Return;
(ix) except as contemplated by this Agreement or required pursuant to commitments entered into existing written, binding agreements in effect prior to the date of this Agreement and disclosed to the other party in writing Agreement, or as otherwise disclosed to the other partyrequired by applicable Law, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) grant or provide any severance or termination payments or benefits to any director, officer or employee of the Company or any of its Subsidiaries, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or employee of the Company or any of its Subsidiaries, (iii) establish, adopt, amend or terminate any Compensation Agreements and Benefit Plans or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Compensation Agreements and Benefit Plans, to the extent not already provided in any such Compensation Agreements and Benefit Plans, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Compensation Agreements and Benefit Plans or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vi) forgive, grant a waiver or extension under, or amend in any manner adverse to the Company or one of its Subsidiaries, any extension of credit to directors or executive officers of the Company or any of its Subsidiaries;
(x) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Offer set forth in Exhibit 1 or the conditions to the Merger set forth in Article VII not being satisfied; or
(xi) agree, authorize or commit to do any of the foregoing.
(c) Without limiting the generality of Section 6.1(a) and in furtherance thereof, during any period from and after the Acceptance Time and prior to the Effective Time during which the 90% Requirement is not satisfied, except (A) as otherwise expressly required by this Agreement, (B) as Parent may approve in writing, or (C) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) adopt any change in the certificate of incorporation or by-laws or other applicable governing instruments of any Subsidiary of the Company;
(ii) merge or consolidate any Subsidiary of the Company with any other Person, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on the Company’s or any of its Subsidiaries’ assets, operations or businesses;
(iii) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of the Company or encumber any assetsof its Subsidiaries (other than the issuance of shares by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, except in accordance with the ordinary course terms of business; the grant of any outstanding and exercisable Company Option that was issued prior to the date of this Agreement;
(iv) except for the Company’s declaration and payment of regular quarterly cash dividends consistent with past practice and in any event not in excess of $0.52 per share with usual record and payment dates for such dividends in accordance with past dividend practice of the Company, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(v) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(vi) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;
(vii) settle any material litigation or other material proceedings, in each case relating to any of the Transactions before a Governmental Entity;
(viii) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement, or as otherwise required by applicable Law, (i) grant or provide any severance or termination payments or benefits to any director, officer or employee of the Company or any of its Subsidiaries, (ii) expend increase the compensation, bonus or commit to expend any amounts in respect of capital expensespension, excluding certain expenditures which may be agreed towelfare, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership severance or other business organization whatsoever; (iv) acquire (by mergerbenefits of, amalgamation, consolidation or acquisition of shares or assets) pay any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entitybonus to, or make any loans new equity awards to any director, officer or advancesemployee of the Company or any of its Subsidiaries, (iii) establish, adopt, amend or terminate any Compensation Agreements and Benefit Plans or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Compensation Agreements and Benefit Plans, to the extent not already provided in any such Compensation Agreements and Benefit Plans, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Compensation Agreements and Benefit Plans or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vi) forgive, grant a waiver of extension under, or amend in any manner adverse to the Company or one of its Subsidiaries, any extension of credit to directors or executive officers of the Company or any of its Subsidiaries;
(ix) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied; or
(x) agree, authorize or commit to do any of the foregoing.
(d) Prior to making any written or oral communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the Transactions, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
(e) Parent shall not knowingly take or permit any of its Subsidiaries to take any action that is reasonably likely to prevent or materially delay the consummation of the Transactions.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Bank of Tokyo - Mitsubishi Ufj, LTD), Merger Agreement (Mitsubishi Ufj Financial Group Inc), Merger Agreement (Unionbancal Corp)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing, except with the prior written consent of the Offeror, acting reasonablysuch approval not to be unreasonably withheld or delayed, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement, and except as required by applicable Laws) the business of it and 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 reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly contemplated by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed) or (C) for transactions set forth in Section 6.1 of the Company Disclosure Letter, the Company will not and will not permit any of its Subsidiaries to:
(ai) Caza covenants and agrees that adopt or propose any change in its business shall be conducted only in articles of incorporation or by-laws or other applicable governing instruments;
(ii) merge or consolidate the usual and Company or any of its Subsidiaries with any other Person, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) acquire assets outside of the ordinary course of business consistent with past practicespractice from any other Person, and it shall use all commercially reasonable efforts other than acquisitions pursuant to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with Contracts in effect as of the Offeror in respect date of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretothis Agreement;
(biv) Caza shall notissue, directly sell, pledge, dispose of, grant, transfer, encumber, or indirectlyauthorize the issuance, do sale, pledge, disposition, grant, transfer, lease, license, guarantee or permit to occur encumbrance of, any Shares or any shares of capital stock of the Company or any of the following:
(i) amend its constating documents; (ii) issue Subsidiaries (other than on exercise the issuance of shares by a wholly owned Subsidiary of the Company to the Company or surrender of currently outstanding Caza Optionsanother wholly owned Subsidiary), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible or exchangeable into or exchangeable or exercisable forfor any shares of such capital stock, or otherwise evidencing a right any options, warrants or other rights of any kind to acquireacquire any Shares or any shares of such capital stock or such convertible or exchangeable securities;
(v) create or incur any Lien in excess of $5 million on any assets of the Company or any of its Subsidiaries;
(vi) make any loans, securities advances or capital contributions to or investments in any Person, other than non-material advances to vendors and employees in the ordinary course of Caza; business consistent with past practice;
(iiivii) redeementer into any agreement with respect to the voting of its capital stock or declare, purchase set aside, make or pay any dividend or other distribution, or purchase, redeem or otherwise acquire any of its outstanding securitiescapital stock payable in cash, except as permitted pursuant to the terms thereof stock, property or as permitted in accordance with or contemplated by this Agreement; (iv) splitotherwise, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock except for (x) dividends paid by any direct or indirect wholly owned Subsidiary of the foregoing except Company to the Company or to any other direct or indirect wholly owned Subsidiary of the Company or (y) a regular quarterly dividend paid in the fourth quarter of 2006 consistent with past practice, which shall not exceed $200,000 in the aggregate as set forth in Section 5.1(f) of the Company Disclosure Letter;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise permitted acquire, directly or contemplated by indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(ix) incur any indebtedness for borrowed money (other than borrowings under the Company’s existing working capital debt facilities in the ordinary course of business consistent with past practice to fund working capital of the Company) or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries;
(x) make or authorize any capital expenditures in excess of $5 million in the aggregate;
(xi) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement;
(cxii) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;
(xiii) other than in the ordinary course of business consistent with past practice, amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it or waive any rights;
(xiv) make any material Tax election, take any material position on any material Tax Return filed on or after the date of this Agreement or adopt any tax accounting method that is inconsistent with positions taken or methods used in preparing or filing similar Tax Returns in prior periods, or settle or resolve any material Tax controversy;
(xv) other than pursuant to Contracts in effect prior to the date of this Agreement, transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, except (x) in the ordinary course of business consistent with past practice, (y) for sales of obsolete assets or (z) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $5 million in the aggregate;
(xvi) except for transactions disclosed as otherwise required by applicable Law, (i) increase the compensation, bonus or pension or welfare benefits of (other than those increases in the Disclosure Letterordinary course consistent with past practice (A) to employees below the Senior Vice President level or (B) resulting from the Company’s improved performance, Caza based on existing 2005 incentive formulas), or make any new equity awards to, any director, officer or employee of the Company or any of its Subsidiaries, (ii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any Benefit Plan or outstanding equity-based awards, or (iii) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already required by any such Benefit Plan;
(xvii) settle, or consent to any settlement of, any actions, suits, claims or proceedings against the Company or any of its Subsidiaries or any obligation or liability of the Company (i) alleging personal injury or property damage arising from exposure to asbestos or asbestos-containing materials (other than disputes paid under the Company’s insurance not exceeding $50,000 per claimant), or (ii) alleging any other injury or damage (other than disputes with customers or suppliers in the ordinary course of business consistent with past practice and not exceeding $50,000 per claimant);
(xviii) take any action or omit to take any action that will notwaive, modify, compromise or extinguish any of the Company’s rights with respect to (A) any insurance coverage relating to any actions, suits or claims against the Company or any of its Subsidiaries alleging personal injury or property damage arising from exposure to asbestos or asbestos-containing materials, or (B) any agreements, understandings or arrangements relating to any such coverage;
(xix) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied, except actions or omissions expressly permitted by Section 6.2; provided that the foregoing shall not expand, diminish or modify in any way any of the Company’s express obligations hereunder;
(xx) enter into, terminate, amend or modify any Contract or transaction with any officer, director or Affiliate of the Company or any of its Subsidiaries or any Person beneficially owning five percent or more of the outstanding Shares or of the outstanding shares of any Subsidiary of the Company;
(xxi) enter into any purchase order (other than purchase orders entered into in the ordinary course of business consistent with past practice and in an amount less than $10 million); or
(xxii) agree, authorize or commit to do any of the foregoing.
(b) Parent will not and will not permit any of its subsidiaries to, directly Subsidiaries to take any action or indirectly, do omit to take any action that is reasonably likely to result in any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior conditions to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants Merger set forth in this Section 7.1(c7.2 or Section 7.3 not being satisfied, except actions or omissions expressly permitted by Section 6.12(c); (iii) reorganizeprovided that the foregoing shall not expand, amalgamate, merge diminish or otherwise continue with modify in any other Person, corporation, partnership way any of Parent’s or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;Merger Sub’s express obligations hereunder.
Appears in 3 contracts
Samples: Merger Agreement (McJunkin Red Man Holding Corp), Merger Agreement (Goldman Sachs Group Inc), Merger Agreement (McJunkin Red Man Corp)
Interim Operations. During the period from (a) After the date of execution of this Agreement and ending on prior to the earlier of the Effective Time and the termination of this Agreement and the Effective Time, except (A) as required by applicable Law or (B) as otherwise expressly required by this Agreement, except with each of the Company and Parent will not, and agrees that it will cause its respective Subsidiaries not to, in each case without the prior written consent of the OfferorCompany (with respect to actions to be taken by the Parent Group Entities) or Parent (with respect to actions to be taken by the Company or the Company’s Subsidiaries) (which consent will not be unreasonably withheld, acting reasonably, and except as otherwise required by law delayed or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:conditioned):
(i) amend make any material change to the nature of its constating documents; business and operations;
(ii) issue (other than make any change to its organizational documents as in effect on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement in any manner that would reasonably be expected to (A) prohibit or materially impede or delay the Merger or the consummation of the other transactions contemplated by this Agreement, or (B) adversely affect in a material way the rights of holders of its securities or the securities of any other party hereto;
(iii) waive, release, assign, settle or compromise any claim, action or proceeding, including any state or federal regulatory proceeding seeking damages or injunction or other equitable relief, which waiver, release, assignment, settlement or compromise would reasonably be expected to result in a Material Adverse Effect on the Company or Parent, as applicable;
(iv) recommend, propose, announce, adopt or vote to adopt a plan of complete or partial dissolution or liquidation, in each case, that would (A) prevent or materially impede or delay the ability of the parties to satisfy any of the conditions to, or the consummation of, the transactions set forth in this Agreement or (B) adversely affect in a material way the rights of holders of the securities of any party hereto;
(v) make any material change to its accounting principles or practices, except as may be required as a result of a change in GAAP; or
(vi) agree, authorize or commit to do any of the foregoing.
(b) From the date of this Agreement until the Closing Date, each of the Company and disclosed to Parent shall promptly notify the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sellany event, pledgecondition or circumstance that could reasonably be expected to result in any of the conditions set forth in Article VI not being satisfied at the Effective Time, dispose of or encumber any assets, except in the ordinary course of business; and (ii) expend any material breach by the notifying party of any covenant, obligation or commit agreement contained in this Agreement; provided, however, that the delivery of any notice pursuant to expend any amounts this
Section 5.1 (b) shall not limit or otherwise affect the remedies available hereunder to the notified party. From the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in respect of capital expensesaccordance with its terms, excluding certain expenditures which may be agreed Parent agrees that it will not, and it will cause its Subsidiaries not to, from time exercise any right to time, by the Offeror in writing, which for greater certainty, shall not be subject purchase Company Common Share pursuant to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;Company Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Cheniere Energy Partners LP Holdings, LLC), Merger Agreement (Cheniere Energy Inc), Merger Agreement (Cheniere Energy Inc)
Interim Operations. During the period from The Company covenants and agrees that, after the date of execution of this Agreement hereof and ending on prior to the earlier of the Effective Time and the termination of this Agreement, except with Agreement or the prior written consent of the Offeror, acting reasonablyEffective Time (unless Parent shall otherwise approve in writing, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement) and except as required by applicable Laws, its business shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it shall use its commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the present executive officers or key employees of the Company. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or expressly permitted by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), (C) as required by applicable Law, or (D) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not:
(a) Caza covenants and agrees that adopt or propose any change in its certificate of incorporation or bylaws or other applicable governing instruments;
(b) merge or consolidate the Company with any other Person or restructure, reorganize or completely or partially liquidate;
(c) acquire assets or any securities of any business shall be conducted only from any other Person, in any transaction or series of related transactions, other than (i) acquisitions pursuant to Contracts in effect as of the date of this Agreement, (ii) acquisitions with a value or purchase price in the usual aggregate of less than $200,000, or (iii) acquisitions of inventory, supplies, and other purchases in the ordinary course of business;
(d) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than required issuances of shares of Company Common Stock upon the exercise of Company Stock Options outstanding as of the date of this Agreement;
(e) create or incur any Lien material to the Company on any assets of the Company having a value in excess of $100,000 in the aggregate;
(f) make any loans, advances or capital contributions to or investments in any Person in excess of $100,000 in the aggregate;
(g) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or enter into any agreement with respect to the voting of its capital stock;
(h) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(i) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company, except for (i) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practicespractices not to exceed $100,000 in the aggregate, (ii) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, or (iii) interest rate swaps on customary commercial terms consistent with past practice and it shall use all commercially reasonable efforts not to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with exceed $100,000 of notional debt in the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoaggregate;
(bj) Caza shall not, directly or indirectly, do or permit to occur any except as set forth in the capital budgets set forth in Section 6.1(a)(x) of the following:Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $100,000 in the aggregate during any 12 month period;
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (viik) enter into any Contract, other than a Customer Contract, that is reasonably likely to require aggregate annual payments to or modify from the Company of more than $250,000 or that is reasonably likely to require aggregate payments to or from the company of more than $500,000;
(l) enter into any contractContract, agreementother than a Customer Contract, commitment or arrangement with respect that would have been a Material Contract had it been entered into prior to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(cm) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;
(n) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $100,000 (net of insurance coverage) or any obligation or liability of the Company in excess of such amount;
(o) amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it under any Material Contract or waive any rights under any Material Contract;
(p) make or change any Tax election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxes, settle or compromise any Tax liability, claim or assessment, surrender any right to claim a refund of Taxes or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(q) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Company, except for product sales in the ordinary course of business, sales of obsolete assets or sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $100,000 the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement;
(r) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or required pursuant to commitments entered into existing written, binding agreements in effect prior to the date of this Agreement and disclosed to the other party set forth in writing or otherwise disclosed to the other party, without the prior consent Section 5.1(h)(i) of the other partyCompany Disclosure Letter, such consent not to be unreasonably withheld: (i) sellgrant or provide any severance or termination payments or benefits to any director, pledgeofficer, dispose employee or other service provider of or encumber any assetsthe Company, except in the ordinary course of business; (ii) expend increase the compensation, bonus or commit to expend any amounts in respect of capital expensespension, excluding certain expenditures which may be agreed towelfare, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership severance or other business organization whatsoever; (iv) acquire (by mergerbenefits of, amalgamation, consolidation or acquisition of shares or assets) pay any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entitybonus to, or make any new equity awards to any director, officer, employee or other service provider of the Company, (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to directors, officers or advancesemployees of the Company;
(s) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VIII not being satisfied; or
(t) agree, authorize or commit to do any of the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (Visicu Inc), Merger Agreement (Sterling Venture Partners L P), Merger Agreement (Cardinal Health Partners Lp)
Interim Operations. During Pursuant to the period from Merger Agreement, the date of execution of this Company has agreed that, except as expressly contemplated by the Merger Agreement and ending on or agreed to in writing by Parent, prior to the earlier time the directors of the Effective Time and the termination of this Agreement, except with the prior written consent Parent constitute a majority of the OfferorCompany Board, acting reasonablythe Company shall, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
shall cause each of its Subsidiaries 22 to, (a) Caza covenants conduct its operations in all material respects according to their ordinary and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with in substantially the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except same manner as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into conducted prior to the date of this Agreement the Merger Agreement; (b) use reasonable best efforts to preserve intact its business organization in all material respects, keep available the services of its executive officers and disclosed key employees as a group, subject to changes in the ordinary course, and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with them; (c) confer at such times as Parent may reasonably request with one or more representatives of Parent to report material operational matters and the general status of ongoing operations (in each case to the extent Parent reasonably requires such information) and consult with Parent regarding material operational decisions; (d) promptly notify Parent of any emergency or other party change in writing the normal course of its businesses or in the operation of its properties and of any complaints, investigations or hearings (or communications indicating that the same may be contemplated) of any governmental body or authority; (e) not authorize or pay any dividends on or make any distribution with respect to its outstanding shares of stock; (f) not, except as otherwise disclosed contemplated by the Merger Agreement or as may be required by applicable law, enter into or amend any employment, severance or similar agreements or arrangements with any of their directors or executive officers; (g) not, subject to the provisions described below under the heading "No Solicitation," authorize, announce an intention to authorize, or enter into an agreement with respect to, any merger, consolidation or business combination other partythan the Merger, without the prior consent any acquisition of the other partya material amount of assets or securities, such consent any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights, in each case, not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (iih) expend not propose or commit adopt any amendments to expend its corporate charter or by-laws, except pursuant to the Merger as provided in the Merger Agreement; (i) not issue any amounts in respect shares of capital expensesstock, excluding certain expenditures which except upon exercise of options previously issued pursuant to existing employee plans, programs or arrangements and non-employee director plans; (j) not grant, confer or award any options, warrants, conversion rights or other rights not existing on the date of the Merger Agreement, to acquire any shares of its capital stock; (k) not purchase, redeem, or offer to purchase or redeem any shares of its stock or any securities convertible into or exchangeable for shares of stock, except for the deemed repurchase of options in accordance with the terms of the Merger Agreement, or purchases, redemptions and offers to purchase in the ordinary course of business in connection with employee incentive and benefit plans, programs or arrangements in existence on the date of the Merger Agreement; (l) not, except as contemplated by the Merger Agreement or as may be agreed torequired by applicable law, from time amend in any material respect the terms of its employee benefit plans, programs or arrangements or any severance or similar agreements or arrangements in existence on the date of the Merger Agreement, enter into or amend any employment or consulting agreement, adopt or enter into any new employee benefit plans, programs or arrangements or any severance or similar agreements or arrangements or increase the base salary of any person who is a party to timea Change of Control Employment Agreement or make any payments under any benefit plan to any director, employee, independent contractor or consultant (except in the ordinary course of business and in amounts and in a manner consistent with past practice or as otherwise required by law or the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(cprovisions of such benefit plan); (m) not (i) enter into any material loan agreement or incur any indebtedness in excess of an aggregate of $100,000 or amend any Company credit facility to increase the amount that may be borrowed thereunder, (ii) make or enter into any agreement or contract for capital expenditures in excess of $50,000, (iii) reorganizeenter into any lease for real property in excess of $50,000 or any lease for personal property in excess of $20,000, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire enter into any agreement or contract outside of the ordinary course of business of the Company or any of the Company's subsidiaries that involves performance of services or delivery of goods or materials by or to the Company or any of the Company's subsidiaries of an amount or value in excess of $50,000; (n) not make or change any material Tax election, file any amendment to any federal income Tax Return unless required by mergerlaw, amalgamationenter into any closing agreement, consolidation or acquisition settle or compromise any material Tax liability; (o) not adjust, split, combine or reclassify its capital stock; (p) not enter into any agreement, understanding or arrangement with respect to the sale or voting of shares its capital stock; (q) not create any new subsidiaries; (r) except as required by the Merger Agreement, not take any action which could reasonably be expected to adversely affect or assetsdelay the ability of any of the parties to obtain any approval of any governmental or regulatory body required to consummate the transactions contemplated thereby; (s) not directly or indirectly sell, transfer, lease, pledge, mortgage, encumber or otherwise dispose of any corporation, partnership material property or assets other business organization or division thereof, or, except for investments in securities made than in the ordinary course of business; (t) not enter into any financial derivative contracts; (u) not change in any material respect its accounting policies, make any investment, either methods or procedures except as required by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entityGAAP; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise except as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;may 23
Appears in 3 contracts
Samples: Offer to Purchase (Falcon Products Inc /De/), Offer to Purchase (Shelby Williams Industries Inc), Offer to Purchase (Falcon Products Inc /De/)
Interim Operations. During (a) Except as set forth in the period corresponding section of the Company Disclosure Schedule or otherwise as expressly contemplated hereby, subject to applicable Law, the Company covenants and agrees as to itself and its Subsidiaries that, from the date of execution of this Agreement and ending on the earlier of until the Effective Time Time, the business of it and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business Subsidiaries shall be conducted only in the usual ordinary 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 and keep available the services of the present key employees and agents of the Company and its Subsidiaries. Without limiting the generality of the foregoing and in furtherance thereof, except as set forth in the corresponding section of the Company Disclosure Schedule or as otherwise expressly contemplated hereby, from the date of this Agreement until the Effective Time, the Company will not and will not permit its Subsidiaries to (unless Novartis shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed and shall be subject to the procedures set forth on Schedule 7.1(a) of the Company Disclosure Schedule):
(i) adopt or propose any change in its certificate of incorporation or by-laws (or similar governing documents);
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly-owned Subsidiaries of the Company;
(iii) acquire assets outside of the ordinary course of business from any Person with a purchase price in the aggregate in excess of $2,000,000 individually, other than acquisitions pursuant to any Contract in effect as of the date of this Agreement and described in or filed as an exhibit to the Company Reports filed prior to the date of this Agreement;
(iv) other than in the ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with practice (excluding for this purpose the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any activities of the following:
(iCompany and its Subsidiaries in 2005) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into Contracts in effect as of the date of this Agreement as set forth on Section 7.1(a)(iv) of the Company Disclosure Schedule, and other than the issuance of shares of Common Stock upon the exercise of outstanding Company Options, pursuant to other equity-based awards granted under other Company equity-based compensation plans prior to the date of this Agreement and disclosed consistent with the terms thereof or pursuant to the other party in writing or otherwise disclosed terms of the Debentures (to the other partyextent required by such terms), without the prior consent of the other partyin each case, such consent not to be unreasonably withheld: (i) in accordance with their terms, issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or encumber any assetsof its Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), or securities convertible or exchangeable or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) other than pursuant to Contracts in effect as of the date of this Agreement and described in or filed as an exhibit to the Company Reports filed prior to the date of this Agreement, make any loan, advance or capital contribution to or investment in any Person (other than a wholly-owned Subsidiary of the Company) outside the ordinary course of business (other than loans to employees not to exceed, in the aggregate, $2,500,000 in principal amount);
(vi) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends or other distributions by any direct or indirect wholly-owned Subsidiary of the Company to the Company or to any other direct or indirect wholly-owned Subsidiary of the Company and periodic dividends and other periodic distributions by non-wholly-owned Subsidiaries in the ordinary course of business; );
(iivii) expend reclassify, combine, split, subdivide or commit to expend redeem, purchase or otherwise acquire, directly or indirectly, any amounts of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) incur any third-party indebtedness for borrowed money or guarantee such indebtedness of another Person, except for unsecured indebtedness for borrowed money incurred in respect the ordinary course of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants business repayable within 180 days without penalty;
(ix) except as set forth in Section 7.1(a)(ix) of the Company Disclosure Schedule, make or authorize any capital expenditure;
(x) enter into any Contract that would have been a Material Contract had it been entered into prior to the execution of this Agreement, other than any Contract (A) for the sale of products in the ordinary course of business or (B) providing for any capital expenditure to the extent permitted by Section 7.1(c7.1(a)(ix); ;
(iiixi) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than in the ordinary course of business, amend or modify in any material respect, or terminate or waive any material right or benefit under, any Material Contract;
(xii) make any investmentsignificant changes with respect to accounting policies or practices, either except as required by purchase changes in GAAP or by Law;
(xiii) settle any litigation or other proceedings before or threatened to be brought before a Governmental Entity or arbitral proceeding for an amount payable by or on behalf of shares the Company or securitiesany Subsidiary in excess of $2,500,000 (exclusive of any amounts to be received by the Company in reimbursement of such settlement amount, contributions of capital (whether under any insurance policy or indemnity, other than such amounts that are contested) or which would be reasonably likely to subsidiaries)have any adverse impact on the operations of the Company or any of its Subsidiaries or on any current or future litigation or other proceeding of the Company or any of its Subsidiaries;
(xiv) except as required by Law, property transfermake any material Tax election or take any material position on any material Tax Return filed on or after the date of this Agreement or adopt any material method therefor that is inconsistent with elections made, orpositions taken or methods used in preparing or filing similar Tax Returns in prior periods;
(xv) sell, lease, license or otherwise dispose of any assets of the Company or its Subsidiaries except for (i) sales of (A) products or services provided in the ordinary course of business or (B) other assets in aggregate amount not to exceed $5,000,000, or (ii) licenses of Intellectual Property of the Company or its Subsidiaries in the ordinary course of business (but excluding (x) any licenses of programs, projects or products or (y) any licenses with up-fronts or milestones in excess of $5,000,000 in the aggregate), and other than pursuant to Contracts in effect as of the date of this Agreement as set forth on Section 7.1(xv) of the Company Disclosure Schedule;
(xvi) other than pursuant to Contracts in effect as of the date of this Agreement as set forth on Section 7.1(xvi) of the Company Disclosure Schedule, or as otherwise required by Law, (i) enter into any new employment or compensatory agreements with, or increase the compensation and employee benefits of, any employee, consultant, or director of the Company or any of its Subsidiaries (including entering into any bonus, severance, change of control, termination, reduction-in-force or consulting agreement or other employee benefits arrangement or agreement pursuant to which such person has the right to any form of compensation from the Company or any of its Subsidiaries), (ii) hire any employee to fill a position at the level of (A) executive committee member or other executive officer or (B) vice president or above who reports directly to an executive committee member, or (iii) adopt or amend in any respect, or accelerate vesting or payment under, any Benefit Plan in the case of clauses (i) and (iii) above other than in the ordinary course of business consistent with past practice;
(xvii) engage in the conduct of any new line of business, purchase other than as expressly permitted by Section 7.1(a)(iii) of the Company Disclosure Schedule; or
(xviii) agree, resolve or commit to do any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Novartis Ag), Merger Agreement (Chiron Corp), Agreement and Plan of Merger (Novartis Corp)
Interim Operations. During Except (i) as expressly contemplated by this Agreement, (ii) as set forth in Section 7.01 of the period Company Disclosure Schedule, (iii) as required by applicable Law, (iv) as consented to in writing by Parent, which consent shall not be unreasonably conditioned, withheld or delayed, the Company agrees that, from the date of execution of this Agreement and ending on until the earlier of the Effective Time and the termination of this Agreement, except Agreement in accordance with its terms and the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this AgreementEffective Time:
(a) Caza covenants the Company and agrees that each of its Subsidiaries shall (i) conduct business shall be conducted only in the usual ordinary course of business consistent with past practice and (ii) use commercially reasonable efforts to (A) preserve intact its current business organization and (B) keep available the services of its current officers, employees and consultants who are important to the operation of the business; provided that no action or failure to take action by the Company or any of its Subsidiaries with respect to matters specifically addressed by any provision of Section 7.01(b) through (n) shall constitute a breach under this Section 7.01(a) unless such action or failure to take action would constitute a breach of such provision of Section 7.01(b) through (n), as applicable;
(b) the Company shall not amend its articles of incorporation or bylaws;
(c) the Company shall not, and shall not permit any of its Subsidiaries that is not wholly owned to, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock or other equity securities (whether in cash, assets, stock or other securities of the Company or its Subsidiaries), except (i) dividends and distributions paid or made on a pro rata basis by Subsidiaries and (ii) quarterly dividends in accordance with the Company’s publicly announced dividend policy as in effect on the date of this Agreement;
(d) except for transactions exclusively among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, the Company shall not, and shall not permit any of its Subsidiaries to, issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of its capital stock or other ownership interest in the Company or any Subsidiaries of the Company or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest or convertible or exchangeable securities, take any action to cause to be exercisable any otherwise unexercisable Company Stock Option (except as otherwise provided by the terms of this Agreement or the express terms of any unexercisable options or awards outstanding on the date hereof) or otherwise make any changes (by combination, merger, consolidation, reorganization, liquidation, split, combination, reclassification, adjustment or otherwise) in the capital structure of the Company or any of its Subsidiaries or amend the terms of any securities of the Company or any of its Subsidiaries, other than issuances of shares of Common Stock in respect of any exercise of Company Stock Options outstanding on the date hereof;
(e) except to the extent required by Law (including Section 409A of the Code) or by Contracts in existence as of the date hereof or by Company Benefit Plans, the Company shall not and shall not permit any of its Subsidiaries to (i) increase in any material manner the aggregate compensation and benefits of its directors or executive officers except (A) in the ordinary course of business consistent with past practice (the ordinary course including, for this purpose, the employee salary, bonus and equity compensation review process and related adjustments substantially as conducted each year), or (B) in accordance with existing Contracts or Company Benefit Plans, (ii) pay any pension, severance or retirement benefits not required by any existing plan or agreement to any such directors or executive officers, (iii) enter into, amend (other than amendments that do not materially increase the cost to the Company or any of its Subsidiaries of maintaining the applicable compensation or benefit program, policy, arrangement or agreement), adopt, implement or otherwise commit itself to any compensation or benefit plan, program, policy, arrangement or agreement including any pension, retirement, profit-sharing, bonus, collective bargaining or other employee benefit or welfare benefit plan, policy, arrangement or agreement or employment or consulting agreement with or for the benefit of any employee, director, consultant, independent contractor or service provider, other than with respect to any employment, severance or retention agreement (or amendment with respect thereto) entered into in the ordinary course of business consistent with past practice between the Company or one of its Subsidiaries, on the one hand, and any consultant, independent contractor, service provider or employee of the Company or its Subsidiaries who is not an executive officer of the Company or its Subsidiaries, or (iv) other than pursuant to the express terms of the respective Company Benefit Plan or Contract, accelerate the vesting of, or the lapsing of restrictions with respect to, any stock options or other stock-based compensation of or for the benefit of any director or executive officer or otherwise accelerate any rights or benefits, or make any determinations that would result in a material increase in liabilities under any Company Benefit Plan;
(f) the Company shall not, and shall not permit any its Subsidiaries to, make any loans or advances to any of its directors and executive officers (other than in the ordinary course of business consistent with past practice in amount) or make any change in its existing borrowing or lending arrangements for or on behalf of any such Persons;
(g) the Company shall not, and shall not permit any of its Subsidiaries to, incur, assume, guarantee, prepay or otherwise become liable for any indebtedness for borrowed money (directly, contingently or otherwise), except for (A) any indebtedness for borrowed money among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, (B) indebtedness for borrowed money in an amount not to exceed $5,000,000 in aggregate principal amount outstanding at any time, incurred under and pursuant to existing credit arrangements, (C) letters of credit issued in the ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts (D) indebtedness for borrowed money as required to maintain consummate the Merger and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretotransactions contemplated hereby;
(bh) Caza shall not, directly or indirectly, do or permit to occur neither the Company nor any of its Subsidiaries shall settle or compromise any claim, suit action, arbitration or other proceeding, whether administrative, civil or criminal, in law or equity, except for settlements or compromises that consist solely of the following:payment of monetary damages in an amount not to exceed $1,000,000 individually or $5,000,000 in the aggregate;
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire neither the Company nor any of its outstanding securitiesSubsidiaries shall change any of the material accounting methods, except as permitted pursuant to principles or practices used by it unless required by or advisable under a change in GAAP, SEC rule or policy or applicable Law;
(j) other than in the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) splitordinary course of business, combine or reclassify neither the Company nor any of its securities; Subsidiaries shall (vA) adopt make, change or revoke any material income Tax election, (B) file any material amended income Tax Return, or (C) settle or compromise any material liability for income Taxes or surrender any claim for a plan refund of liquidation a material amount of income Taxes, other than in the case of clauses (B) and (C) hereof in respect of any income Taxes that have been identified in the reserves for income Taxes in the Company’s GAAP financial statements and for settlements or resolutions providing for compromises permitted under clause (g) of this Section;
(k) neither the liquidationCompany nor any of its subsidiaries shall acquire, dissolutionexcept in respect of any mergers, consolidations, business combinations among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, including by merger, consolidation or reorganization acquisition of Caza; (vi) declarestock or assets, set aside any corporation, partnership, limited liability company, other business organization or pay any dividend division thereof, or other distribution any material amount of assets in connection with acquisitions or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreementinvestments;
(cl) except for transactions disclosed in neither the Disclosure Letter, Caza will not, and will not permit Company nor any of its subsidiaries to, directly Subsidiaries shall amend in any material respect or indirectly, do waive any of the following other than as contemplated by this Agreement its material rights under any Company Material Contract or pursuant to commitments entered enter into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assetsContract that would constitute a Company Material Contract, except in the ordinary course of business; business consistent with past practice or as would not reasonably be expected to result in a Company Material Adverse Effect;
(iim) expend or commit to expend neither the Company nor any amounts in respect of capital expensesits Subsidiaries shall sell, excluding certain expenditures which may be agreed totransfer, from time to timemortgage, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge encumber or otherwise continue with dispose of any other Personof its assets, corporation, partnership business or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, orproperties, except for investments in securities made sales, transfers, mortgages, encumbrances or other dispositions in the ordinary course of business, make any investmentor Liens, either by purchase mortgages or encumbrances granted in connection with refinancing, replacement or extension of shares existing indebtedness consistent with past practice or securitiespursuant to a transaction that, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of together with any other individual such transactions, is not material to it and its Subsidiaries, taken as a whole; and
(n) neither the Company nor any of its Subsidiaries shall enter into a Contract to do any of the foregoing. The Company, on the one hand, and Parent and Merger Sub, on the other hand, acknowledge and agree that: (i) nothing contained in this Agreement is intended to give Parent or entity; (v) incur any indebtedness for borrowed money Merger Sub, directly or indirectly, the right to control or direct the operations of the Company or any other material liability or obligation or issue any debt securities or assumeof its Subsidiaries prior to the Effective Time, guarantee, endorse or otherwise as an accommodation become responsible for(ii) prior to the Effective Time, the obligation Company shall exercise, consistent with the terms and conditions of this Agreement, control and supervision over its and its Subsidiaries’ operations and (iii) notwithstanding anything to the contrary in this Agreement, no consent of Parent shall be required with respect to any other individual matter set forth in this Section 7.01 or entity, or make any loans or advances;elsewhere in this Agreement to the extent the requirement of such consent would reasonably be expected to be a violation of applicable Law.
Appears in 3 contracts
Samples: Merger Agreement (Campbell Thomas J), Merger Agreement (Michael Baker Corp), Merger Agreement (Michael Baker Corp)
Interim Operations. During the period (a) The Company covenants and agrees as to itself and its Subsidiaries that from the date of execution of this Agreement and ending on the earlier of until the Effective Time and the termination of this AgreementTime, except with the prior written consent of the Offeror, acting reasonablyunless Parent shall otherwise approve in writing (such approval not to be unreasonably withheld or delayed), and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement or as required by Law or Contracts existing as of the date of this Agreement:
(a) Caza covenants , the business of the Company and agrees that its business Subsidiaries shall be conducted only in the ordinary and usual course and, to the extent consistent therewith, the Company and ordinary course of business consistent with past practices, and it its Subsidiaries shall use all commercially reasonable efforts best efforts, when in the best interests of the Company and its Subsidiaries, to preserve their business organizations intact and maintain their existing relations and preserve its businessgoodwill with Governmental Entities with jurisdiction over health-care related matters, assets customers, manufacturers (which shall not include the payment of additional money or concessions other than pursuant to existing contractual terms), suppliers, distributors, creditors, lessors and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs employees and keep available the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any services of the followingpresent employees and agents of the Company and its Subsidiaries. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (i) as otherwise expressly contemplated by this Agreement or as required by Contracts existing as of the date of this Agreement, (ii) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed) or (iii) as set forth in Section 6.1(a) of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) adopt or propose any change in its certificate of incorporation or by laws or other applicable governing instruments or amend its constating documents; any term of the Shares, other than in furtherance of this Agreement;
(ii) issue merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly owned Subsidiaries of the Company that are not obligors or guarantors of third-party indebtedness, or adopt a plan of liquidation;
(iii) except as set forth in Section 6.1(a)(xi), acquire assets outside of the ordinary course of business from any other Person with an aggregate value or purchase price in excess of $750,000, other than capital expenditures within the Company’s capital expenditure budget as set forth in Section 6.1(a)(xi) of the Company Disclosure Letter;
(iv) enter into any material line of business other than the line of business in which the Company and its Subsidiaries is currently engaged as of the date of this Agreement or, except for the products set forth in Section 6.1(a)(iv) of the Company Disclosure Letter, distribute products other than the products that the Company and its Subsidiaries are currently distributing as of the date of this Agreement;
(v) other than the issuance of Shares (i) pursuant to the ESPP as contemplated by Section 4.5 or (ii) pursuant to Company Options granted prior to the date of this Agreement or as contemplated by Section 6.1(a)(xix), issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than on exercise the issuance of shares by a wholly owned Subsidiary of the Company to the Company or surrender another wholly owned Subsidiary of currently outstanding Caza Optionsthe Company), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible or exchangeable into or exchangeable or exercisable forfor any shares of such capital stock, or otherwise evidencing a right any Rights;
(vi) other than in the ordinary course of business, create or incur any Lien (other than Permitted Liens) material to acquire, securities of Caza; (iii) redeem, purchase the Company or otherwise acquire any of its outstanding securities, except as permitted pursuant to Subsidiaries on any assets used in the terms thereof businesses of the Company or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; Subsidiaries having a value in excess of $500,000;
(vvii) adopt a plan make any loans, advances or capital contributions to, or investments in, any Person (other than the Company or any direct or indirect wholly owned Subsidiary of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization Company) in excess of Caza; $500,000 in the aggregate;
(viviii) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares cash, stock or propertyproperty or any combination thereof) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any shares of capital stock of any Subsidiary, except for dividends or distributions by any direct or indirect wholly owned Subsidiaries of the foregoing except as otherwise permitted Company and pro rata dividends or contemplated by this Agreementdistributions payable to holders of interests in non-wholly owned Subsidiaries;
(cix) except for transactions disclosed in the Disclosure Letterreclassify, Caza will notsplit (including a reverse split), and will not permit any of its subsidiaries torecapitalize, subdivide or repurchase, redeem or otherwise acquire, directly or indirectly, do any of its capital stock or Rights;
(x) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the following Company or any of its Subsidiaries, except for (A) in the ordinary course of business not to exceed $500,000 in the aggregate or indebtedness for borrowed money incurred under existing credit facilities, (B) refinancings on commercially reasonable terms or (C) guarantees by the Company of indebtedness of wholly owned Subsidiaries of the Company or guarantees by Subsidiaries of indebtedness of the Company;
(xi) except as set forth in Section 6.1(a)(xi) of the Company Disclosure Letter, make or authorize any capital expenditure in excess of $750,000;
(xii) other than as contemplated by this Agreement or pursuant to commitments in the ordinary course of business, enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement and disclosed (other than as permitted elsewhere in this Section 6.1(a));
(xiii) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP or except as the other party Company, based upon the advice of its independent auditors after consultation with Parent, determines in writing or otherwise disclosed good faith is advisable to the other party, without the prior consent conform to best accounting practices;
(xiv) except as set forth in Section 6.1(a)(xiv) of the other partyCompany Disclosure Letter, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts provide an indemnity in respect of capital expensesany pending or threatened civil, excluding certain expenditures which may criminal or administrative actions, suits, claims, litigations, arbitrations, investigations or other proceedings for an amount to be agreed to, from time to time, paid by the Offeror Company or any of its Subsidiaries in writingexcess of, or that would reasonably be expected to be in excess of, $250,000 or which for greater certaintywould be reasonably likely to have any adverse impact on the operations of the Company or any of its Subsidiaries, shall not be subject or indemnify any Person other than pursuant to the covenants set forth in this Section 7.1(c); a contractual obligation to do so;
(iiixv) reorganizeenter into any consent decree, amalgamateenter a guilty or nolo contendre plea, merge settle any civil, criminal or otherwise continue with any other Personadministration actions, corporationsuits, partnership claims, litigations, arbitrations, investigations or other business organization whatsoever; proceedings for an amount in excess of $1,000,000 or enter into any settlement that would reasonably be expected to change in any material respect the Company’s or any of its Subsidiaries’ current methods of operations;
(ivxvi) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than in the ordinary course of business, make (A) amend or modify in any investmentmaterial respect, either by purchase of shares or securitiesterminate or waive any material right or benefit under, contributions of capital any Material Contract (other than to subsidiariesas permitted elsewhere in this Section 6.1(a)) or (B) cancel, property transfermodify or waive any debts or claims held by it or waive any rights having in each case a value in excess of $500,000;
(xvii) except as required by Law, ormake any material Tax election or take any material position on any material Tax Return filed on or after the date of this Agreement or adopt any method therefor that is inconsistent with elections made, positions taken or methods used in preparing or filing similar Tax Returns in prior periods or settle or compromise any material tax liability;
(xviii) sell, lease, license or otherwise dispose of any material assets of the Company or its Subsidiaries except in the ordinary course of business or obsolete assets;
(xix) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify any Company Benefit Plans, except new hire grants committed to in writing prior to the date of this Agreement in the ordinary and usual course of business; or
(xx) increase the salary, purchase wage, bonus or other compensation payable or to become payable to the directors, officers or employees of the Company or any of its Subsidiaries, except in the ordinary and usual course of business; or
(xxi) agree or commit to do any of the foregoing. Notwithstanding anything to the contrary contained in this Section 6.1(a), to the extent they relate to the Partnerships, the Company’s obligations in this Section 6.1(a) shall be limited to taking such steps, such as the exercise of any veto rights, that are within the control of the Company and its Subsidiaries (other than the Partnerships).
(b) From the date of this Agreement until the Effective Time, except (i) as otherwise expressly required by this Agreement or other Contract existing on the date of this Agreement, (ii) as the Company may approve in writing (such approval not to be unreasonably withheld or delayed) or (iii) as set forth in Section 6.1(b) of the Parent Disclosure Letter, Parent will not, and will not permit its Subsidiaries to:
(i) adopt or propose any material change in Parent’s certificate of incorporation or by laws or amend any term of the shares of Parent Common Stock;
(ii) enter into any agreement with respect to, or consummate, any acquisition by Parent or its Subsidiaries of any Person or assets, the consummation of which would require the filing of a current report on Form 8-K pursuant to Item 2.01 thereof with the SEC and which would reasonably be expected to materially hinder or delay the transactions contemplated by this Agreement;
(iii) other than the issuance of shares of Parent Common Stock issued for fair value in arm’s length transactions and other than the issuance of shares in the ordinary course of business consistent with past practices pursuant to Parent employee benefit plans, issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of Parent or any its Subsidiaries (other than the issuance of shares by a wholly owned Subsidiary of Parent to Parent or another wholly owned Subsidiary), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate Parent or any of its Subsidiaries to issue or sell any shares of such capital stock or such convertible or exchangeable securities;
(iv) declare, set aside or pay any dividend or distribution (whether in cash, stock or property or assets any combination thereof) on any shares of Parent Common Stock or on any shares of capital stock of any Subsidiary, other individual than (A) by wholly owned Subsidiaries and pro rata dividends or entity; distributions payable to holders of interests in non-wholly owned Subsidiaries and (B) Parent’s regular quarterly dividend, including any increases thereof, at record and payment dates consistent with past practices;
(v) incur any indebtedness for borrowed money reclassify, split (including a reverse split), recapitalize, subdivide or any other material liability or obligation or issue any debt securities or assumerepurchase, guarantee, endorse redeem or otherwise as an accommodation become responsible foracquire at prices above fair market value, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock; or
(vi) agree or commit to do any of the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Accredo Health Inc), Merger Agreement (Medco Health Solutions Inc)
Interim Operations. During (a) Without limiting the period Company's obligations under Section 6.5 of this Agreement, except as set forth in the corresponding section of the Company Disclosure Letter or otherwise as expressly contemplated hereby, the Company covenants and agrees as to itself and its Subsidiaries that, from the date of this Agreement until the Effective Time (unless Cingular shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed), the business of it and its Subsidiaries shall be conducted in the ordinary course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the present employees and agents of the Company and its Subsidiaries. Without limiting the Company's obligations under Section 6.5 of this Agreement and without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, the Company will not and will not permit its Subsidiaries to (unless Cingular shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed):
(i) adopt or propose any change in its certificate of incorporation or by-laws or other applicable governing instruments;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly-owned Subsidiaries of the Company that are not obligors or guarantors of third party indebtedness;
(iii) acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $50,000,000, other than acquisitions pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and ending on the earlier set forth in Section 6.1(a)(iii) of the Effective Time and the termination of this Agreement, except with the prior written consent Company Disclosure Letter or as otherwise set forth in Section 6.1(a)(iii) of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoCompany Disclosure Letter;
(biv) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to Contracts to the terms thereof or extent in effect as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into immediately prior to the date execution of this Agreement and disclosed to the other party set forth in writing or otherwise disclosed to the other party, without the prior consent Section 6.1(a)(iv) of the Company Disclosure Letter, and other partythan the issuance of shares of Common Stock upon the exercise of outstanding Company Options and pursuant to other equity-based awards granted under the Stock Plans and shares under the Company's 401(k) plan and the deferred compensation plans, such consent not to be unreasonably withheld: (i) in each case, in accordance with their terms, issue, sell, pledge, dispose of of, grant, transfer, lease, license, guarantee, encumber, or encumber authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect shares of capital expenses, excluding certain expenditures which may be agreed to, from time to time, stock of the Company or any its Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary of the Offeror in writing, which for greater certainty, shall not be subject Company to the covenants set forth in this Section 7.1(cCompany or another wholly-owned Subsidiary); (iii) reorganize, amalgamateor securities convertible or exchangeable or exercisable for any shares of such capital stock, merge or otherwise continue with any other Personoptions, corporation, partnership warrants or other business organization whatsoever; rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(ivv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments than in securities made connection with existing receivables facilities and securitizations and renewals thereof in the ordinary course of business, create or incur any Lien on assets of the Company or any of its Subsidiaries that is material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole;
(vi) other than acquisitions pursuant to Contracts to the extent in effect as of immediately prior to the execution of this Agreement and set forth in Section 6.1(a)(vi) of the Company Disclosure Letter, make any investmentloan, either by purchase of shares advance or securities, contributions of capital contribution to or investment in any Person (other than to subsidiaries)a wholly-owned Subsidiary of the Company) in excess of $25,000,000 in the aggregate;
(vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property transferor otherwise, orwith respect to any of its capital stock (except for dividends or other distributions by any direct or indirect wholly-owned Subsidiary of the Company to the Company or to any other direct or indirect wholly-owned Subsidiary of the Company and periodic dividends and other periodic distributions by non-wholly-owned Subsidiaries consistent with past practices) or enter into any agreement with respect to the voting of its capital stock;
(viii) other than the redemption of the Series C Preferred Stock or the Series E Preferred Stock in accordance with the Company's certificate of incorporation, except in the ordinary course of businessreclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any property of its capital stock or assets securities convertible or exchangeable into or exercisable for any share of any other individual or entity; its capital stock;
(vix) incur any indebtedness for borrowed money or any other material liability or obligation guarantee such indebtedness of another Person, or issue or sell any debt securities or assumewarrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, guaranteeexcept for (A) indebtedness for borrowed money incurred in the ordinary course of business not to exceed $50,000,000 in the aggregate, endorse (B) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on customary commercial terms, (C) guarantees incurred in compliance with this Section 6.1(a) by the Company of indebtedness of wholly-owned Subsidiaries of the Company or (D) interest rate swaps on customary commercial terms, consistent with past practices and not to exceed $750,000,000 of notional debt in the aggregate;
(x) except as set forth in Section 6.1(a)(x) of the Company Disclosure Letter, make or authorize any capital expenditure;
(xi) enter into any Material Contract that would have been a Material Contact as described in clauses (J), (L) or (M) of Section 5.1(j)(i) had it been entered into prior to the execution of this Agreement, and other than in the ordinary course of business, enter into any other Material Contract that would have been a Material Contract as described in Section 5.1(j)(i) (other than as described in clauses (J), (L) or (M)) had it been entered into prior to the execution of this Agreement;
(xii) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP or by Law or except as the Company, based on the advice of its independent auditors and after consultation with Cingular, determines in good faith is advisable to conform to best accounting practices;
(xiii) settle any litigation or other proceedings before or threatened to be brought before a Governmental Entity for an amount in excess of $10,000,000 or which would be reasonably likely to have any adverse impact on the operations of the Company or any of its Subsidiaries or on any current or future litigation or other proceeding of the Company or any of its Subsidiaries; provided, that any litigation or other proceeding with respect to an item relating to Taxes may be settled for an amount that is not in excess of the amount reserved or accrued for such item on the most recent balance sheet contained in the Company Reports filed prior to the date of this Agreement (which reserve and accrual information shall be furnished by the Company to Cingular upon Cingular's request);
(xiv) other than in the ordinary course of business, amend or modify in any material respect, or terminate or waive any material right or benefit under any Material Contract;
(xv) except as required by Law, make any material Tax election or take any material position on any material Tax Return filed on or after the date of this Agreement or adopt any material method therefor that is inconsistent with elections made, positions taken or methods used in preparing or filing similar Tax Returns in prior periods. Notwithstanding the foregoing, the Company shall consult with Cingular and its Representatives prior to claiming any depreciation allowance under Section 168(k) of the Code;
(xvi) sell, lease, license, or otherwise as an accommodation become responsible for, the obligation dispose of any assets of the Company or its Subsidiaries except for ordinary course sales of mobile telephone equipment to customers of the Company, services provided in the ordinary course of business or obsolete assets and except for sales, leases, licenses or other individual dispositions of assets with a fair market value not in excess of $25,000,000 in the aggregate, other than pursuant to Contracts in effect prior to the execution of this Agreement and set forth in Section 6.1(a)(iii) of the Company Disclosure Letter or entityas otherwise set forth in Section 6.1(a)(iii) of the Company Disclosure Letter and other than any dispositions of assets to the extent used as consideration for acquisitions that are permitted pursuant to Section 6.1(a)(iii);
(xvii) except as required pursuant to existing written, binding agreements in effect prior to the execution of this Agreement, as otherwise required by Law, or in the ordinary course of business consistent with past practice (which with respect to annual bonus plans and performance share awards is set forth in Section 6.1(a)(xvii) of the Company Disclosure Letter), (i) enter into any commitment to provide any severance or termination benefits to (or amend any existing arrangement with) any director, officer or employee of the Company or any of its Subsidiaries, (ii) increase the benefits payable under any existing severance or termination benefit policy or employment agreement (other than as required to be increased pursuant to the existing terms of any such policy or agreement), (iii) enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement) with any director or officer of the Company or any of its Subsidiaries other than for new hires, (iv) establish, adopt, amend, terminate or make any loans new awards under any bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or advancesother benefit plan or arrangement covering any director, officer or employee of the Company or any of its Subsidiaries (v) increase the compensation, bonus or other benefits payable to any director, officer, employee, consultant or independent contractor of the Company or any of its Subsidiaries, or (vi) amend the terms of any outstanding Company Option or other equity-based award; provided, that the Company shall in no event take any action to amend its severance plans, except as required by applicable Law;
(xviii) fail to initiate appropriate steps to renew any material FCC Licenses held by the Company or its Subsidiaries that are scheduled to terminate prior to or within 60 days after the Effective Time;
(xix) engage in the conduct of any business requiring the receipt or transfer of a License issued by a Governmental Entity other than engaging in the mobile wireless voice and data business in the U.S. and activities incident thereto, other than any other current lines of business and geographic locations of the Company or any of its Subsidiaries and other than as expressly permitted by Section 6.1(a)(iii) of the Company Disclosure Letter;
(xx) except as otherwise permitted hereby with respect to employees, enter into any material Contract with or engage in any material transaction with DoCoMo or any other Affiliate of the Company;
(xxi) adopt a technology platform other than existing technologies, (including analog, TDMA, EDGE, GSM and GPRS), HSDPA or UMTS and W-CDMA (including in each case the standards set forth on Section 6.1(a)(xxi) of the Company Disclosure Letter);
(xxii) amend, modify or waive any provision under the Rights Agreement; and
(xxiii) agree or commit to do any of the foregoing.
(b) Each of SBC and BellSouth will cause Cingular and Cingular Wireless to take all action necessary to consummate the transactions contemplated by this Agreement subject to the terms and conditions hereof. Neither SBC nor BellSouth will take or permit any of its Subsidiaries to take any action that at the time of taking such action is reasonably likely to prevent the consummation of the Merger. Except as set forth in the corresponding section of the disclosure letter delivered by SBC to the Company at the time of entering into this Agreement (the "SBC Disclosure Letter"), neither SBC nor BellSouth shall, and each shall cause its Subsidiaries not to, prior to the Termination Date, (i) enter into any definitive agreement for the acquisition of any business or Person which provides commercial mobile wireless voice and data services offered to the public utilizing frequencies and spectrum licensed by the FCC, other than the provision of such services in de minimis amounts or (ii) take any action which would, at the time the action is taken, reasonably be expected to materially interfere with its ability to make available to Cingular or the Paying Agent as of the Effective Time funds sufficient for its Specified Interest of the Merger Consideration. Each of SBC and BellSouth will, subject to the terms and conditions of this Agreement, make available to Cingular or the Paying Agent its Specified Interest of the Merger Consideration.
Appears in 2 contracts
Samples: Merger Agreement (SBC Communications Inc), Merger Agreement (At&t Wireless Services Inc)
Interim Operations. During (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the period date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably denied and except as otherwise expressly contemplated by this Agreement) and except as required by applicable Laws, the business of it and 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 reasonable best efforts to (i) preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates, (ii) make all filings, pay all fees and take all other actions necessary and reasonable to protect, preserve and maintain the Scheduled Intellectual Property, and (iii) keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of the foregoing and in furtherance thereof, from the date of execution of this Agreement and ending on the earlier of until the Effective Time and the termination of Time, except (A) as otherwise expressly required by this Agreement, except with the prior written consent (B) as Parent may approve in writing, which approval shall not be unreasonably denied or (C) as set forth in Section 7.1(a) of the OfferorCompany Disclosure Schedule, acting reasonably, the Company will not and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that will not permit its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the followingSubsidiaries to:
(i) amend adopt or propose any change in its constating documents; articles of organization or by laws or other applicable governing instruments;
(ii) issue merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly-owned Subsidiaries of the Company, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) acquire assets outside of the ordinary course of business, other than acquisitions pursuant to Contracts in effect as of the date of this Agreement;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than on exercise (A) the issuance of shares pursuant to outstanding stock options, warrants or surrender rights or (B) by a wholly owned Subsidiary of currently outstanding Caza Optionsthe Company to the Company or another wholly owned Subsidiary), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible or exchangeable into or exchangeable or exercisable forfor any shares of such capital stock, or otherwise evidencing a right any options, warrants or other rights of any kind to acquire, securities acquire any shares of Caza; such capital stock or such convertible or exchangeable securities;
(iiiv) redeem, purchase create or otherwise acquire incur any Lien material to the Company or any of its outstanding securities, except as permitted pursuant to Subsidiaries on any assets (including Intellectual Property) of the terms thereof Company or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt Subsidiaries having a plan value in excess of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; $100,000;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company) in excess of $100,000 in the aggregate;
(vii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to the foregoing except as otherwise permitted Company or contemplated by this Agreementto any other direct or indirect wholly owned Subsidiary or regular quarterly dividends, not to exceed $.07 per share, declared and paid consistent with prior timing) or enter into any agreement with respect to the voting of its capital stock;
(cviii) except for transactions disclosed in the Disclosure Letterreclassify, Caza will notsplit, and will not permit any of its subsidiaries tocombine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, do any of the following other than as contemplated by this Agreement its capital stock or pursuant to commitments entered securities convertible or exchangeable into prior to the date or exercisable for any shares of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: its capital stock;
(i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (vix) incur any indebtedness for borrowed money or any other material liability or obligation guarantee such indebtedness of another Person, or issue or sell any debt securities or assumewarrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, guaranteeexcept for (i) indebtedness for borrowed money at any one time outstanding incurred in the ordinary course of business consistent with past practices for working capital incurred pursuant to the Bank of America Credit Facility not to exceed indebtedness as of March 2, endorse 2007 plus $15,000,000, (ii) in replacement of existing indebtedness for borrowed money on terms substantially consistent with or otherwise more beneficial than the indebtedness being replaced, or (iii) guarantees incurred in compliance with this Section 7.1 by the Company of indebtedness of wholly-owned Subsidiaries of the Company;
(x) except as set forth in the capital budgets set forth in Section 7.1(a)(x) of the Company Disclosure Schedule and consistent therewith, make or authorize any capital expenditure in excess of $1,000,000 in the aggregate during any 12-month period;
(xi) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement;
(xii) make any changes with respect to accounting policies or procedures, except as required by changes in applicable generally accepted accounting principles;
(xiii) amend, modify or terminate any Material Contract or Intellectual Property Contract, or cancel, modify or waive any debts or claims held by it or waive any rights in excess of $250,000 in the aggregate;
(xiv) settle any litigation or other proceedings before a Governmental Entity for an accommodation become responsible for, amount in excess of the obligation amount of any other individual reserve on the balance sheet as of March 2, 2007 as set forth on Section 7.1(a)(xiv) of the Company Disclosure Schedule plus $150,000 in the aggregate or entity, any obligation or make any loans or advancesliability of the Company in excess of such amount;
Appears in 2 contracts
Samples: Merger Agreement (Stride Rite Corp), Merger Agreement (Payless Shoesource Inc /De/)
Interim Operations. During (a) The Company covenants and agrees that, after the period date hereof and prior to the Effective Time, except as expressly contemplated or permitted by this Agreement or required by applicable Law or with the prior written approval of Parent (which shall not be unreasonably withheld, delayed or conditioned), the Company shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course. To the extent consistent with the foregoing and except as otherwise consented to by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company and its Subsidiaries shall use their respective reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, and other Persons with whom the Company or its Subsidiaries has a material business relationship. Without limiting the generality of the foregoing, from the date of execution of this Agreement and ending on the earlier of until the Effective Time and the termination of Time, except (w) as otherwise expressly contemplated or permitted by this Agreement, except (x) with the prior written consent approval of Parent (not to be unreasonably withheld, delayed or conditioned), (y) as required by applicable Law or (z) as set forth in Section 5.1(a) of the OfferorCompany Disclosure Schedule, acting reasonably, the Company will not and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect will not permit any of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the followingSubsidiaries to:
(i) amend its constating documents; certificate of incorporation or by-laws or other applicable governing instruments;
(ii) issue merge or consolidate the Company or any of its Subsidiaries with any other Person;
(iii) make any acquisition (whether by merger, consolidation, or acquisition of stock or assets) of any interest in any Person or any division or assets thereof other than on exercise (A) acquisitions in the ordinary course of business with a value or surrender purchase price in the aggregate not in excess of currently outstanding Caza Options)$2,000,000 in any transaction or series of related transactions, or (B) acquisitions pursuant to Contracts in effect as of the date of this Agreement, true and complete copies of which have been made available to Parent;
(iv) issue, sell, pledge, grant, sell transfer, encumber or pledge otherwise dispose of any shares of capital stock of the Company or agree to issue, grant, sell or pledge any securities of Cazaits Subsidiaries, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right options, warrants, calls, commitments or rights of any kind to acquire, securities any shares of Caza; capital stock of the Company or any of its Subsidiaries (iiiother than (A) the issuance of shares of Class A Common Stock upon the settlement of Company Options or Company Restricted Stock Awards, (B) in satisfaction of obligations pursuant to Contracts or Plans existing as of the date hereof, (C) by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company, (D) the issuance of equity awards permitted by clause (xii) below or (E) the issuance of shares of Class A Common Stock pursuant to the terms of an ESPP offering permitted under Section 2.8(c));
(v) make any loans, advances (other than pursuant to Government Contracts in the ordinary course of business) or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly-owned Subsidiary of the Company) in excess of $2,000,000 in the aggregate;
(vi) declare, set aside, establish a record date for, make or pay any dividend or other distribution (whether payable in cash, stock, property or otherwise) with respect to any of its capital stock (except dividends paid by any direct or indirect wholly-owned Subsidiary to the Company or to any other direct or indirect wholly-owned Subsidiary);
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire acquire, directly or indirectly, any of its outstanding securities, except as permitted pursuant capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than the acquisition of any shares of Class A Common Stock tendered by current or former employees or directors in order to pay Taxes in connection with the terms thereof settlement of Company Options or as permitted Company Restricted Stock Awards and other than in accordance connection with a customary cashless exercise of Company Options);
(viii) incur or contemplated by this Agreement; (iv) split, combine enter into any agreement to incur any indebtedness for borrowed money or reclassify issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or any of its securitiesSubsidiaries or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person (other than the Company or any direct or indirect wholly-owned Subsidiary of the Company) for borrowed money, except to fund operations in the event the U.S. Congress allows for a lapse in federal agencies’ authority to appropriate funds or curtails funding for nonessential activities in certain federal agencies or departments under the Company’s existing revolving credit facility in an aggregate amount not to exceed the maximum amount authorized under that agreement at any time to be outstanding;
(ix) except (A) as set forth in Section 5.1(a)(ix) of the Company Disclosure Schedule, (B) in the ordinary course of business or (C) for expenditures related to operational emergencies, make or authorize any capital expenditure in excess of $2,000,000 in the aggregate;
(x) settle or compromise any litigation, claim or other proceeding against the Company or any of its Subsidiaries other than settlements or compromises where the amounts paid by the Company or any of its Subsidiaries in settlement or compromise do not exceed $2,000,000, in the aggregate; provided that the foregoing shall not permit the Company or any of its Subsidiaries to settle any litigation, claim or other proceeding that would impose material restrictions or changes on the business or operations of the Company or any of its Subsidiaries;
(vxi) transfer, sell, lease, license, mortgage, pledge, surrender, abandon or allow to lapse or expire or otherwise dispose of, or grant any Lien other than any Permitted Lien on, any material amount of assets, rights (including Intellectual Property), properties, product lines or businesses of the Company or its Subsidiaries, other than (A) in the ordinary course of business, (B) pursuant to Contracts existing as of the date hereof or (C) transactions solely among the Company and/or its wholly-owned Subsidiaries;
(xii) except to satisfy contractual obligations pursuant to Contracts, or as required under Plans existing as of the date hereof or as set forth in Section 5.1(a)(xii) of the Company Disclosure Schedule, the Company shall not, and shall not permit any of its Subsidiaries to, (A) grant, pay or commit to grant or pay any material severance or termination pay, (B) enter into any Plan with any director or executive officer of the Company, (C) adopt any new employee benefit plan or arrangement or amend, modify or terminate any existing Plan or ERISA Plan in a manner that materially increases the cost associated with such Plan or ERISA Plan, (D) make any new equity awards to any current or former director, executive officer, employee or consultant of the Company or any of its Subsidiaries, (E) otherwise increase or commit to increase any compensation or employee benefits payable to any director, officer or employee of the Company or any of its Subsidiaries or (F) fund or in any way secure any payments or benefits under any Plan;
(xiii) adopt or enter into a plan or agreement of liquidation complete or resolutions providing for the partial liquidation, dissolution, merger, consolidation or other reorganization of Caza; the Company or any of its Subsidiaries (viother than the Merger);
(A) declaremodify, set aside amend or pay terminate any dividend or Material Contract other distribution or payment than (whether in cash shares or property1) in respect the ordinary course of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; business consistent with past practice or (vii2) modifications or amendments which are immaterial, or (B) enter into any new Contract or modify any contractagreement that, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments if entered into prior to the date of this Agreement and disclosed Agreement, would have been required to the other party be listed in writing or otherwise disclosed to the other party, without the prior consent Section 3.15(a) of the Company Disclosure Schedule as a Material Contract other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except than in the ordinary course of businessbusiness consistent with past practice (it being understood that the foregoing exception to this clause (B) shall not permit the entry into any Contract with an Affiliate or a “related person” (as such term is defined in item 404(a) of Regulation S-K under the Exchange Act));
(xv) except as may be required by a change in GAAP or applicable Law, make any material change in its financial accounting principles, policies, or practices;
(A) make any Tax election or take any position on a Tax Return filed on or after the date of this Agreement or adopt any method therein that is inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods unless such position, election or method is pursuant to applicable Law or the Code, (B) enter into any settlement or compromise of any Tax liability, (C) file any amended Tax Return that would result in a change in Tax liability, taxable income or loss, (D) change any annual Tax accounting period, (E) enter into any closing agreement relating to any Tax liability, or (F) give or request any waiver of a statute of limitation with respect to any Tax Return, provided, that such election, settlement, amended Tax Return or any other action described in the foregoing portion of this Section 5.1(a)(xvi) shall not require prior written consent of Parent if all such actions, in the aggregate, would not reasonably be expected to result in a cost to the Company and its Subsidiaries in excess of $500,000; or
(iixvii) expend agree, authorize or commit to expend do any amounts of the foregoing.
(b) Nothing contained in respect this Agreement is intended to give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or any of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject its Subsidiaries’ operations prior to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (Providence Equity Partners VI L P), Merger Agreement (Sra International Inc)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing (which such approval shall not be unreasonably withheld, except with the prior written consent of the Offeror, acting reasonablyconditioned or delayed), and except (i) as otherwise required by law or expressly permitted or specifically contemplated by this Agreement), (ii) as required by applicable Laws and (iii) as set forth in Section 6.1(a) of the Company Disclosure Letter, the business of the Company and its Subsidiaries taken as a whole (the “Business”) shall be conducted in the ordinary and usual course consistent with past practice in all material respects and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve their collective business organizations intact, maintain their material Licenses that are integral to the operation of the Business as currently conducted and keep available the services of its and its Subsidiaries’ present employees and agents who are integral to the operation of the Businesses as currently conducted and use commercially reasonable efforts to maintain, in all material respects, existing relations and goodwill with Governmental Entities, customers, suppliers, distributors and employees whom, in the reasonable discretion of the Company, are currently engaged in relationships with the Company and/or its Subsidiaries that are integral to the operation of the Business as currently conducted; provided, however, that any action which the Company and/or its Subsidiaries is permitted to take pursuant to Section 6.1(b) in accordance with the terms thereof shall not be deemed to be a breach of this Section 6.1(a).
(b) In furtherance of the foregoing Section 6.1(a), from the date hereof until the Effective Time, except (A) as otherwise expressly contemplated by this Agreement, (B) as required by applicable Law, (C) as Parent may approve in writing (which such approval shall not be unreasonably withheld, conditioned or delayed), or (C) as set forth in Section 6.1(b) of the Company Disclosure Letter, the Company shall not and shall not permit its Subsidiaries to:
(ai) Caza covenants adopt or propose any change in its certificate of incorporation or by-laws or similar organizational documents other than any administrative or ministerial changes made to any certificate of incorporation or by-laws or similar organizational documents of any Subsidiary of the Company which is not otherwise restricted under any other clause of this Section 6.1(b);
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, or restructure, reorganize or liquidate all or a material part of its assets;
(iii) acquire assets outside of the ordinary course of business from any other Person, other than (i) acquisitions pursuant to Contracts in effect as of the date hereof and agrees that related to matters described in Section 6.1(a)(iii) of the Company Disclosure Letter and (ii) acquisitions pursuant to which the total value or purchase price paid or payable by the Company and its business shall be conducted only Subsidiaries would not exceed $2,000,000, individually or in the usual and aggregate;
(iv) issue, deliver, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, delivery, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, except for the issuance of Shares in respect of Company Options, Company RSUs and/or the Company Warrant outstanding as of the date of this Agreement in accordance with their terms and, as applicable, the Stock Plans as in effect on the date of this Agreement;
(v) make any loans or advances to any Person (other than advances made in the ordinary course of business consistent with past practicespractice to employees of the Company and its Subsidiaries for reimbursement of expenses, and it shall use including relocation expenses, in amounts not to exceed $250,000 individually or $2,000,000 in the aggregate for all commercially reasonable efforts such advances) or any capital contributions to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with or investments in any Person (other than the Offeror in respect Company or any direct or indirect wholly-owned Subsidiary of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoCompany);
(bvi) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (viA) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly-owned Subsidiary to the foregoing Company or to any other direct or indirect wholly-owned Subsidiary), (B) purchase, redeem or otherwise acquire any shares of capital stock or other securities, or subdivide, reclassify, recapitalize, split, combine or exchange or enter into any similar transaction with respect to any of its capital stock or other securities or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock or other securities, except for (i) any split, combination or reclassification of capital stock of any wholly-owned Subsidiary of the Company, or any issuance of any securities of a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company, (ii) purchases, redemptions or other acquisitions of capital stock or other securities (y) permitted by the terms of the Stock Plans or (z) permitted by the terms of any plans, arrangements or Contracts existing on the date of this Agreement (or entered into after the date of this Agreement in compliance with this Section 6.1) between the Company or any of its Subsidiaries and any director or employee of the Company or any of its Subsidiaries, or (iii) the issuance of Shares in respect of Company Options, Company RSUs and/or the Company Warrant outstanding as otherwise permitted or contemplated by of the date of this Agreement in accordance with their terms and, as applicable, the Stock Plans as in effect on the date of this Agreement, or (C) enter into any agreement with respect to the voting of its capital stock;
(cvii) except incur any indebtedness for transactions disclosed in borrowed money, assume, guarantee, endorse or otherwise become responsible for any indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt security of the Disclosure Letter, Caza will not, and will not permit Company or any of its subsidiaries toSubsidiaries, directly enter into any “keep well” or indirectly, do other Contract to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the following foregoing that, individually or in the aggregate, exceeds $5,000,000;
(viii) make or authorize any payment of, or accrual or commitment for, any capital expenditure in excess of $4,000,000 in the aggregate;
(ix) enter into (A) any Contract that would have been a Material Contract (other than as contemplated by this Agreement or pursuant to commitments any Contract described in clause (D) of Section 5.1(l)(i)) had it been entered into prior to the date of this Agreement and disclosed or (B) any Company Intellectual Property Agreement, other than (in the case of clause (B) only) in the ordinary course of business consistent with past practice;
(x) make any changes with respect to accounting policies or procedures, except to the extent required by GAAP or SEC rules and regulations;
(xi) settle or compromise, or offer or propose to settle or compromise, any actions, suits, claims, hearings, arbitrations, litigations, investigations or other party proceedings before a Governmental Entity (each a “Proceeding”) if the foregoing would (A) require the payment of monetary damages by the Company or any of its Subsidiaries after the date hereof of any amount in writing excess of $1,000,000 per Proceeding or otherwise disclosed to $5,000,000, in the other partyaggregate, without for all such Proceedings, net of applicable reserves as set forth in the prior consent consolidated balance sheet of the Company as of September 30, 2012 and any applicable insurance coverage, or (B) involve any injunctive or other partynon-monetary relief which, such in either case, imposes material restrictions on the business operations of the Company and its Subsidiaries, taken as a whole;
(xii) (A) make, change or rescind any material Tax election, (B) file any material amended Tax Return of the Company or any of the Subsidiaries, (C) adopt or change any material method or period of Tax accounting, (D) settle or compromise any material Tax claim, (E) surrender any material claim for a refund of Taxes, (F) enter into any closing agreement relating to Taxes, (G) file any material Tax Return that is inconsistent with past practice, or (H) consent not to be unreasonably withheld: any extension or waiver of the limitation period applicable to any material Tax claim or assessment (i) sell, pledge, dispose other than pursuant to extensions of or encumber any assets, except time to file Tax Returns obtained in the ordinary course of business; );
(iixiii) expend or commit to expend any amounts in respect of capital expensestransfer, excluding certain expenditures which may be agreed tosell, from time to timelease, by the Offeror in writingassign, which for greater certaintylicense, shall not be mortgage, subject to Liens (other than Permitted Liens), pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets (including Intellectual Property), licenses, operations, rights, product lines, businesses or interests therein of the covenants Company or its Subsidiaries that would, individually or in the aggregate, exceed $1,000,000, other than in the ordinary course of business consistent with past practice;
(xiv) except as required pursuant to existing written, binding agreements in effect prior to the date hereof and set forth in this Section 7.1(c5.1(j) of the Company Disclosure Letter, or as otherwise required by applicable Law, (A) grant or provide any severance or termination payments or benefits to any director, officer or employee of the Company or any of its Subsidiaries, (B) increase in any manner the compensation, bonus, pension, welfare, fringe, severance or other benefits of, pay any bonus to, or make any new equity awards to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, (C) become a party to, establish, adopt, commence participation in, amend or terminate any stock option plan or other stock-based compensation plan, or any compensation, severance, pension, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement with or for the benefit of any current or former directors, officers, employees or consultants of the Company or its Subsidiaries (or newly hired employees) or amend the terms of any outstanding equity-based awards, (D) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (E) enter into any collective bargaining agreement or other agreement with a labor union, works council or similar organization, (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, (G) terminate without cause the employment of any executive officer of the Company, or (H) forgive any loans or issue any loans to directors, officers or employees of the Company or any of its Subsidiaries (other than travel and relocation expense advances in immaterial amounts made in the ordinary course of business consistent with past practice to employees of the Company and its Subsidiaries); ;
(iiixv) reorganizeimplement or announce any plant closing, amalgamatematerial reduction in labor force or other layoffs of employees that would be expected to incur liability under the WARN Act (or any similar state, merge local or otherwise continue foreign Law) with respect to the Company or any of its Subsidiaries;
(xvi) enter into any joint venture through a general partnership, limited partnership, limited liability company or similar strategic alliance vehicle or other similar arrangement, with any other PersonPerson (for purposes of clarity, corporationthe foregoing does not include any advertising, partnership content, affiliate, marketing or other business organization whatsoever; (iv) acquire (supplier agreements entered into by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made the Company in the ordinary course of business, make whether or not referred to colloquially as partnerships, strategic relationships or otherwise described with similar phrases);
(xvii) enter into any investmentContract or transaction between the Company or any of its Subsidiaries, either by purchase on the one hand, and any (i) officer or director of shares the Company or securitiesany of its Subsidiaries, contributions (ii) Affiliate or family member of capital any such officer or director or (iii) record or beneficial owner of five percent (5%) or more of the voting securities of the Company or any Affiliate or family member of such record or beneficial owner, on the other hand, in each case of a type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act (other than (A) grants of Company Options made to subsidiariesnew hires in a manner and amount generally consistent with past practice, and (B) grants of Company RSUs made to members of the Company’s board of directors on their respective appointment anniversary dates); or
(xviii) agree, property transfer, or, except in authorize or commit to do any of the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Priceline Com Inc), Merger Agreement (KAYAK Software Corp)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement hereof and ending on until the earlier of the Effective Time and the termination of this AgreementAgreement pursuant to its terms or the Effective Time, except with as otherwise expressly contemplated by this Agreement or as required by applicable Laws, without the prior written consent of Parent (which shall not be unreasonably withheld or delayed), the Offeror, acting reasonably, business of the Company and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business Subsidiaries shall be conducted only in the ordinary and usual course and, to the extent consistent therewith, it and ordinary course of business consistent with past practices, and it its Subsidiaries shall use all commercially their respective reasonable efforts to preserve their business organizations intact and maintain existing relations and preserve its businessgoodwill with Governmental Entities, assets customers, suppliers, distributors, creditors, lessors, employees and advantageous business relationships. Caza shall consult with associates and keep available the Offeror in respect services of its ongoing business and affairs its Subsidiaries’ present employees and keep agents. Without limiting the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any generality of the followingforegoing and in furtherance thereof, from the date of this Agreement until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except (A) as otherwise expressly required by this Agreement or required by Law, (B) as Parent may approve in writing (which approval shall not be unreasonably withheld or delayed) or (C) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) (A) amend its constating documentscertificate of incorporation, by-laws or other applicable governing instruments; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (ivB) split, combine combine, subdivide or reclassify any its outstanding shares of its securitiescapital stock; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (viC) declare, set aside or pay any dividend or other distribution payable in cash, stock or payment (whether in cash shares or property) property in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretionany capital stock; or (viiD) enter repurchase, redeem or otherwise acquire any shares of its capital stock or any securities convertible into or modify exchangeable or exercisable for any contractshares of its capital stock (other than repurchases or redemptions of restricted stock or other equity awards upon termination of employment, agreement, commitment or arrangement in accordance with respect to any the terms of the foregoing except as otherwise permitted or contemplated by this Agreementsuch awards);
(cii) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit merge or consolidate itself or any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue Subsidiaries with any other Person, corporationexcept for any such transactions among its wholly-owned Subsidiaries, partnership or other business organization whatsoever; restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iviii) spend in excess of $6,500,000 individually or $10,000,000 in the aggregate to acquire (any business, whether by merger, amalgamationconsolidation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets or otherwise (valuing any non-cash consideration at its fair market value as of the date of the agreement for such acquisition); provided that neither the Company nor any other individual of its Subsidiaries shall make any acquisition that would, or entitywould reasonably be likely to prevent, delay or impair the Company’s ability to consummate the transactions contemplated by this Agreement; and provided, further, that the Company must also comply with the requirements set forth in Section 6.1(a)(iii) of the Company Disclosure Letter. For purposes of this clause (viii), the amount spent with respect to any acquisition shall be deemed to include the aggregate amount of capital expenditures that the Company or any of its Subsidiaries is obligated to make at any time or plans to make as a result of such acquisition within two (2) years after the date of acquisition;
(iv) incur any indebtedness for borrowed money or any other material liability or obligation guarantee such indebtedness of another Person, or issue or sell any debt securities or assumewarrants or other rights to acquire any of its debt securities or of any of its Subsidiaries, guaranteeexcept for (A) drawings under and refinancings or replacements of the Company’s or any of its Subsidiaries’ current credit agreements in an amount not to exceed $25,000,000 in the aggregate at any one time outstanding, endorse provided that the terms of any such replacement must satisfy the requirements set forth in Section 6.1(a)(iv) of the Company Disclosure Letter, (B) other indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices not to exceed $10,000,000 in the aggregate or (C) interest rate or currency swaps on customary commercial terms consistent with past practice and in compliance with its risk management policies in effect on the date of this Agreement and not to exceed $5,000,000 of notional debt in the aggregate;
(v) make or commit to any capital expenditures other than in the ordinary course of business and in any event not in excess of the aggregate amount reflected in the Company’s capital expenditure budget for the year in which such capital expenditures are made, a copy of which capital expenditure budget for 2010 and 2011 has been furnished to Parent;
(vi) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise as an accommodation become responsible for, the obligation dispose of any of its assets, product lines or businesses or of its Subsidiaries, including capital stock of any of its Subsidiaries and sales of obsolete assets, except for sales, leases, licenses or other individual dispositions of assets with a fair market value not in excess of $10,000,000 in the aggregate, other than pursuant to Contracts in effect as of the date of this Agreement;
(vii) issue, sell, pledge, dispose of, grant, transfer, encumber, or entityauthorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any its Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary to it or another of its wholly-owned Subsidiaries), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than (A) the issuance of Company Shares pursuant to existing Company Options, Company Warrants, and other Company Awards, and (B) the issuance of Company Options and Company Awards in amounts and at times consistent with the Company’s historic hiring and compensation practices and not in excess of the amount set forth on Section 6.1(a)(vii) of the Company Disclosure Letter;
(viii) make any change with respect to accounting policies or procedures, except as required by changes in GAAP or by Law;
(ix) except as required by Law, (A) make any material Tax election or take any position on any Tax Return filed on or after the date of this Agreement or adopt any method therefor that is inconsistent with elections made, positions taken or methods used in preparing or filing similar Tax Returns in prior periods, (B) settle or resolve any material Tax controversy, claim or assessment, (C) enter into any material closing agreement, (D) waive or extend any statute of limitations with respect to Taxes, or (E) surrender any right to claim a refund for Taxes;
(x) make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly-owned Subsidiary of the Company) in excess of $1,000,000 individually or $2,000,000 in the aggregate;
(xi) enter into (A) any non-competition Contract or other Contract that (x) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Affiliates) may engage or the manner or locations in which any of them may so engage in any business or (y) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Affiliates, (B) any other Contract that would have been a Material Contract had it been entered into prior to the date hereof;
(xii) except as required pursuant to Contracts in effect as of the date of this Agreement and set forth in Section 6.1(a)(xii) of the Company Disclosure Letter, or as otherwise required by applicable Law, (A) grant or provide any severance or termination payments or benefits to any of its directors, officers or employees, (B) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any of its directors, officers or employees, except, in each case, for increases or awards made in the ordinary course of business and at times and in amounts consistent with the Company’s historic hiring and compensation practices as described in Section 6.1(a)(xii) of the Company Disclosure Letter, (C) establish, adopt, amend or terminate any Company Compensation and Benefit Plan or amend the terms of any outstanding equity-based awards, (D) except as provided in Section 4.4(f), take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Compensation and Benefit Plans, to the extent not already provided in any such Company Compensation and Benefit Plan, (E) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Compensation and Benefit Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (F) forgive any loans to any of its or advancesof any of its Subsidiaries’ directors, officers or employees;
(xiii) amend, modify or terminate any Material Contract (excluding customer or supplier contracts entered into in the ordinary course of business), or cancel, modify or waive any debts or claims held by it or waive any rights other than in the ordinary course of business having a value in excess of $1,000,000 in the aggregate;
(xiv) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied, including the acquisition of any business or assets reasonably likely to have such an effect;
(xv) settle any litigation or other proceedings before or threatened to be brought before a Governmental Entity if such settlements would exceed $1,000,000 in the aggregate; or
(xvi) agree, authorize or commit to do any of the foregoing.
(b) After the date hereof and until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Parent will not and will not permit its Subsidiaries knowingly to take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied, including the acquisition of any business or assets reasonably likely to have such an effect. Notwithstanding the foregoing and for the avoidance of doubt, the foregoing shall not apply to any pending or planned (i) strategic engagement or investment, (ii) joint venture, (iii) acquisition or (iv) other similar transactions, that in the case of any transaction described in any of clauses (i) through (iv) of this Section 6.1(b), has been publicly announced prior to the execution of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Verifone Systems, Inc.), Merger Agreement (Hypercom Corp)
Interim Operations. During the period from (a) From the date of execution of this Agreement and ending on the earlier of to the Effective Time and Time, except as set forth in the termination of Disclosure Letter or as otherwise required pursuant to this Agreement, except with unless Purchaser has consented in writing thereto, the prior written consent of the Offeror, acting reasonablyCompany shall, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreementshall cause each of its Subsidiaries to:
(ai) Caza covenants and agrees that conduct its business shall be conducted only in the usual operations according to its usual, regular and ordinary course of business consistent with past practices, and it shall practice; (ii) use all commercially its reasonable best efforts to preserve intact their business organizations and goodwill, to maintain in effect all existing qualifications, licenses, Permits, approvals and preserve its businessother authorizations referred to in Sections 6.1 and 6.15, assets to keep available the services of their officers and advantageous employees and to maintain satisfactory relationships with customers, suppliers, distributors, brokers, sales agents and all other persons having business relationships. Caza shall consult relationships with them, including through the payment of additional compensation reasonably acceptable to Purchaser to such distributors, brokers and sales agents reasonably calculated to maintain at least the current level of merchandising, distribution and shelving; (iii) promptly notify Purchaser upon becoming aware of any material breach of any representation, warranty or covenant contained in this Agreement, the occurrence of any event that would cause any representation, warranty or covenant contained in this Agreement no longer to be true and correct in all material respects or any breach of the representations and warranties specified in Section 6.17(iii); (iv) promptly deliver to Purchaser true and correct copies of any report, statement or schedule filed with the Offeror SEC subsequent to the date of this Agreement and any internal monthly reports prepared for or delivered to the Board of Directors after the date hereof; and (v) deliver, within 20 business days after the end of each accounting month, monthly consolidated financial statements, in respect the same format as heretofore furnished to Purchaser, for the Company and its Subsidiaries for and as of its ongoing business and affairs and keep the Offeror apprised end of all material developments relating thereto;each such month.
(b) Caza From the date of this Agreement to the Effective Time, except as set forth in the Disclosure Letter, unless Purchaser has consented in writing thereto, the Company shall not, directly or indirectly, do or and shall not permit to occur any of the followingits Subsidiaries to:
(i) amend its constating documentsCertificate of Incorporation or Bylaws or comparable governing instruments; (ii) issue except with respect to the issuance of treasury stock under the Company's savings plan, the Directors' Plans and the 1991 Employee Stock Purchase Plan in the ordinary course of business consistent with the terms of the governing documents, or where the documents do not govern such issuances, in accordance with the past practice of the Company representing in the aggregate no more than 40,000 shares of Common Stock, issue, sell, pledge or otherwise dispose of any shares of its capital stock or other ownership interest in the Company (other than issuances of Common Stock in respect of any exercise of Options outstanding on exercise the date hereof and disclosed in the Disclosure Letter) or surrender any of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Cazathe Subsidiaries, or any securities convertible into or exchangeable for any such shares or exercisable forownership interest, or otherwise evidencing a any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest, or convertible or exchangeable securities; or accelerate any right to acquire, convert or exchange or acquire any securities of Cazathe Company or any of its Subsidiaries for any such shares or ownership interest; (iii) redeemeffect any stock split, purchase reverse stock split, stock dividend, subdivision, reclassification or similar transaction, or otherwise acquire any of change its outstanding securities, except capitalization as permitted pursuant to it exists on the terms thereof or as permitted in accordance with or contemplated by this Agreementdate hereof; (iv) splitgrant, combine confer, award or reclassify amend any option, warrant, convertible security or other right to acquire any shares of its securitiescapital stock or take any action to cause to be exercisable any otherwise unexercisable option under any stock option plan or restricted stock plan; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend (other than regular quarterly cash dividends at a rate not in excess of $.46 per share of Common Stock) or make any other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any shares of Common Stock or other capital stock or ownership interests (other than such payments by a wholly-owned Subsidiary to the Company or another wholly-owned Subsidiary); (vi) directly or indirectly redeem, purchase or otherwise acquire any shares of its capital stock or the capital stock of any of its Subsidiaries; (vii) sell, lease, assign, transfer or otherwise dispose of (by merger or otherwise) any of its property, business or assets (including, without limitation, receivables, leasehold interests or Intellectual Property and including any sale leaseback transaction) except for (i) the sale of inventory in the ordinary course of business, (ii) the disposition of assets pursuant to the Restructuring as contemplated by Section 8.2(c)(i) and (iii) other asset sales for fair value in the ordinary course of business provided that the proceeds of such other asset sales do not exceed $2,000,000 in any single transaction or $10,000,000 in the aggregate prior to the Effective Time; (viii) settle or compromise any pending or threatened Litigation without Purchaser's consent (which consent will not be unreasonably withheld or delayed), other than settlements (a) of product liability Litigation in the ordinary course of business consistent with the Company's past practice of settling similar product liability claims, provided, in the case of settlements of product liability Litigations in excess of $100,000 only (I) the Company has kept Purchaser reasonably apprised of the foregoing except as otherwise permitted or contemplated by this Agreement;
status of such Litigation and has provided Purchaser with reasonable advance notice of its intention to settle any such Litigation and (II) the settlement would not have a Material Adverse Effect, (b) of other Litigations which involve solely the payment of money (without admission of liability) not to exceed $200,000 in any one case and (c) of Tax Litigation, which is governed by paragraph (xiii); (ix) make any advance, loan, extension of credit or capital contribution to, or purchase or acquire (by merger or otherwise) any stock, bonds, notes, debentures or other securities of, or any assets constituting a business unit of, or make any other investment in, any person, firm or entity, except for transactions disclosed (a) extensions of trade credit and endorsements of negotiable instruments and other negotiable documents in the Disclosure Letterordinary course of business, Caza will not(b) investments in cash and cash equivalents, (c) payroll and travel advances in the ordinary course of business, (d) investments in wholly owned Subsidiaries, and will not permit any of its subsidiaries to, directly or indirectly, do any (e) the acquisition by the Company of the following other than Minority JV Interest as contemplated by this Agreement or pursuant Section 8.2(c)(ii); (x) make any capital expenditures in the aggregate for the Company and its Subsidiaries in excess of the amounts specified in the Company's budget for capital expenditures, a true and complete copy of which has previously been delivered to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing Purchaser, or otherwise disclosed to acquire assets having a value, in the other partyaggregate, without the prior consent in excess of the other party, such consent $500,000 not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (iixi) expend incur, assume or commit create any indebtedness for borrowed money or the deferred purchase price for property or services or pursuant to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership lease or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, orfinancing, except for investments in securities made indebtedness incurred in the ordinary course of businessbusiness consistent with past practice for working capital purposes pursuant to the Company's existing credit facilities or commercial paper program as disclosed in the Disclosure Letter and except for the incurrence, assumption or creation of indebtedness in the ordinary course of business consistent with the past practice of the Company not exceeding $2,000,000 in any one instance or $10,000,000 in the aggregate at any one time outstanding; or amend in a manner materially adverse to the Company, any of the Company's existing credit facilities; (xii) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except wholly-owned Subsidiaries of the Company and except for obligations in the ordinary course of business consistent with the past practice of the Company not exceeding $1,000,000 individually and $5,000,000 in the aggregate; (xiii) make any investmentmaterial Tax election (unless required by law or unless consistent with prior practice) or settle or compromise any material income tax liability except, either by in each case, if Purchaser is given reasonable prior notice thereof; (xiv) waive or amend any term or condition of any confidentiality or "standstill" agreement to which the Company is a party and which relates to a business combination with the Company or the purchase of shares or securitiesassets of the Company; (xv) grant or amend any stock-related or performance awards; (xvi) except with respect to agreements which are terminable at will by the Company without any material penalty to the Company, contributions of capital (enter into or amend any legally binding employment, severance, consulting or salary continuation agreements with any officers, directors or employees or grant any increases in compensation or benefits to employees other than increases to subsidiariesofficers and employees in the ordinary course of business consistent with the past practice of the Company; (xvii) adopt, amend or terminate any employee benefit plan or arrangement (except as expressly contemplated by this Agreement); (xviii) enter into (a) any agreements with distributors or sales agents other than agreements terminable without penalty on less than 30 days' notice, property transfer(b) any agreements to distribute products for others or which restrict the ability of the Company or its Subsidiaries or affiliates to compete or (c) any other agreements, orother than agreements relating to product promotions, that would constitute Material Contracts; or amend any of the foregoing agreements as exist on the date hereof; (xix) amend, change or waive (or exempt any person or entity from the effect of) the Rights Agreement, except in connection with the exercise of its fiduciary duties by the Board of Directors as set forth in Section 8.1 of this Agreement or in connection with the transactions contemplated under this Agreement; (xx) make any material changes in the type or amount of their insurance coverages; (xxi) except as may be required by law or generally acceptable accounting principles and with prior written notice to the Purchaser, change any material accounting principles or practices used by the Company or its Subsidiaries; (xxii) effect any material change in the Company's advertising, product promotion or brand support policies or programs or commit to any significant new product promotion or advertising campaign except, in each case, for matters in the ordinary course of business consistent with the past practice of the Company; (xxiii) effect any material change in the Company's billing practices or sales terms, or cause a material acceleration or delay in the manufacture, shipment or sale of inventory, the collection of accounts or notes receivable or the payment of accounts or notes payable except, in each case, for matters in the ordinary course of business consistent with the past practice of the Company; (xxiv) enter into any Contracts for Derivatives, except for spot, option and forward Contracts entered into in the ordinary course of business consistent with the past practice of the Company and with the Company's policies regarding Derivatives as previously disclosed to Purchaser; (xxv) waive, relinquish, release or terminate any right or claim, including any such right or claim under any Material Contract or permit any rights of material value to use any Intellectual Property to lapse or be forfeited, in each case, except in the ordinary course of business, purchase any property or assets business consistent with the past practice of any other individual or entitythe Company; (vxxvi) incur apply for, consent to, or acquiesce in, the appointment of a trustee, receiver, sequestrator or other custodian for any indebtedness for borrowed money substantial part of the property of the Company or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entitySignificant Subsidiary, or make a general assignment for the benefit of creditors, or permit or suffer to exist the commencement of any loans bankruptcy, reorganization, debt arrangement or advances;other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect of the Company or any Significant Subsidiary; (xxvii) take any action to cause the Common Stock to be delisted from the New York Stock Exchange prior to the completion of the Offer or (if no Offer is made) the Merger; or (xxviii) agree in writing or otherwise to take any of the foregoing actions.
(c) The Company will use reasonable best efforts to (i) carry out its restructuring announced during the third quarter of fiscal 1996 as described in the Disclosure Letter (the "Restructuring") in a manner and on a schedule materially consistent with its plans as previously disclosed to Purchaser, including the sale of its manufacturing facilities in Rutland, Vermont and Tipperary, Ireland and (ii) to acquire, for a purchase price not to exceed $1,000,000 and on other terms reasonably acceptable to Purchaser, the minority interest (the "Minority JV Interest") held by its joint venture partner (Northeast No. 6 Pharmaceutical Factory of China) in the Company's Chinese joint venture subsidiary. At Purchaser's request, the Company will cooperate with Purchaser (including, by conducting mutual negotiations or by seeking declaratory relief) to minimize the possible impact on Purchaser and/or its Subsidiaries of any non-compete covenants to which the Company or any of its Subsidiaries or affiliates may be subject or may be parties following the Closing. The Company shall keep Purchaser reasonably apprised of the status of each of the matters referred to in this Section 8.2(c).
Appears in 2 contracts
Samples: Merger Agreement (Procter & Gamble Co), Merger Agreement (Procter & Gamble Co)
Interim Operations. During (a) From and after the period from the date of execution and delivery of this Agreement and ending on until the earlier of the Effective Time and the termination of this Agreement, except with the prior written consent Agreement and abandonment of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically transactions contemplated by this Agreement:
Agreement pursuant to Article IX, except (ai) Caza covenants and agrees that its business as otherwise required, contemplated or permitted by this Agreement or as required by a Governmental Entity or applicable Law, (ii) as set forth in Section 7.1(a) of the Company Disclosure Schedule or (iii) as Parent shall otherwise consent in writing (which consent shall not be conducted only in unreasonably withheld, delayed or conditioned), the usual and ordinary course of business consistent with past practicesCompany (A) shall, and it shall cause its Subsidiaries to, use all commercially reasonable efforts to conduct their respective businesses in the Ordinary Course of Business in all material respects, (B) shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to (x) maintain all existing relationships and preserve its businessgoodwill with key customers, assets suppliers and advantageous other persons having material business relationships. Caza shall consult relationships with the Offeror in respect Company and its Subsidiaries and (y) keep available the services of the officers and key employees of the Company and its ongoing business Subsidiaries, and affairs and keep (C) without limiting the Offeror apprised generality of all material developments relating thereto;
(b) Caza the foregoing, shall not, directly or indirectly, do or permit to occur any of the followingand shall cause its Subsidiaries not to:
(i) amend adopt or propose any change in its constating documents; Organizational Documents;
(ii) issue merge or consolidate with any other Person, except for any such transactions solely among Wholly Owned Subsidiaries of the Company,
(iii) adopt or enter into a plan of restructuring, reorganizing, dissolving, recapitalizing, complete or partial liquidation or similar transaction;
(iv) enter into any agreements or arrangements imposing material changes or restrictions on its properties, assets, operations or businesses;
(v) acquire or agree to acquire by merger, consolidation, acquisition of stock, equity or assets or otherwise, any business, Person, division, properties or assets from any other Person, other than purchases or acquisitions of assets in the Ordinary Course of Business with a fair market value or purchase price not in excess of $1 million in any individual transaction or $2 million in the aggregate;
(vi) transfer, sell, lease, sublease, license, pledge, mortgage, assign, divest, cancel or otherwise dispose of, or incur, permit or suffer to exist the creation of any Encumbrance (other than on exercise any Permitted Encumbrance) upon any properties or surrender assets (excluding Intellectual Property Rights) material to the Company, except in connection with (A) sales of currently outstanding Caza Options)obsolete assets or (B) sales, leases, licenses or other dispositions of assets, in each case with a -50- fair market value (as reasonably determined by the Company) not in excess of $500,000 in any individual transaction or $1 million in the aggregate;
(vii) issue, deliver, sell, pledge, dispose of, grant, sell transfer, lease, license, guarantee, Encumber or pledge otherwise enter into any Contract or agree understanding with respect to issuethe voting of or transfer any shares of capital stock of the Company or capital stock or other equity or equity-based interests of any of its Subsidiaries, grant, sell securities convertible or pledge exchangeable into or exercisable for any securities such shares of Cazacapital stock or other equity interests, or securities any options, warrants or other rights of any kind to acquire any such shares of capital stock, other equity interests or such convertible into or exchangeable securities (other than (A) the delivery of any Common Shares upon (1) the conversion of either the Preferred Shares (including in respect of dividends accumulated on the Preferred Shares) in accordance with the terms of the Preferred Shares or exercisable for(2) the conversion of the Company Notes in accordance with the Indenture and the exercise of the Capped Call Transactions in accordance with the Capped Call Confirmations (B) the issuance of Preferred Shares in connection with the payment of dividends on the Preferred Shares in accordance with the terms of the Preferred Shares or (B) the issuance of shares of such capital stock, other equity securities or convertible or exchangeable securities (1) by a Wholly Owned Subsidiary of the Company to the Company or another Wholly Owned Subsidiary of the Company, (2) in respect of Company Equity Awards outstanding as of the date of this Agreement in accordance with their terms and, as applicable, the Stock Plans in effect as of the Capitalization Time or (3) pursuant to the ESPP in accordance with its terms and subject to Section 4.3(g));
(viii) make any loans, advances, guarantees or capital contributions to or investments in any Person in excess of $200,000 in the aggregate (other than between the Company and any of its Wholly Owned Subsidiaries in the Ordinary Course of Business);
(ix) declare, set aside, establish a record date for accrue, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise evidencing a right with respect to acquireany of its capital stock or other equity interests (and for the avoidance of doubt, securities excluding the Company Notes) of Caza; the Company or its Subsidiaries, except for (iiiA) dividends paid by any Wholly Owned Subsidiary to the Company or to any other Wholly Owned Subsidiary of the Company or (B) dividends payable to the holders of Preferred Shares, payable in cash or Preferred Shares, in accordance with the terms of the Preferred Shares;
(x) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant (or offer to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to do any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries toforegoing), directly or indirectly, do any of the following its capital stock, other equity interests or securities convertible or exchangeable into or exercisable for any shares of its capital stock or other equity interests, other than (A) the withholding of Common Shares to satisfy the payment of the exercise price on the exercise of a Company Option or withholding Tax obligations upon the exercise, vesting or settlement of Company Equity Awards outstanding as contemplated by this Agreement or pursuant to commitments entered into prior to of the date of this Agreement and disclosed to Agreement, in each case, in accordance with their terms and, as applicable, the other party Stock Plans as in writing or otherwise disclosed to the other party, without the prior consent effect as of the other party, such consent not Capitalization Time and (B) pursuant to be unreasonably withheld: an exercise of the Capped Call Transactions in accordance with their terms;
(i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (vxi) incur or assume any indebtedness for borrowed money, guarantee any indebtedness for borrowed money or enter into a “keep well” or similar arrangement in respect of indebtedness for borrowed money except for any other material liability such indebtedness not to exceed $2.5 million individually or obligation $5 million in the aggregate;
(xii) incur, make or issue authorize any debt securities payment of, or assume, guarantee, endorse accrual or otherwise as an accommodation become responsible commitment for, the obligation of any other individual or entitycapital expenditures, or make any loans obligations or advancesliabilities in connection therewith -51- except as contemplated by or reasonably related to, and which shall not exceed 107.5% of the aggregate amounts set forth in, the Company’s capital budget set forth in Section 7.1(a)(xii) of the Company Disclosure Schedule;
(xiii) enter into, terminate or materially amend any Contract pursuant to which the Company or any of its Subsidiaries purchase from a third party service provider Software (“Third Party IT Contracts”) (other than in the Ordinary Course of Business with respect to any such Contract that involve aggregate annual payments of less than $300,000);
Appears in 2 contracts
Samples: Merger Agreement (Voya Financial, Inc.), Merger Agreement (Voya Financial, Inc.)
Interim Operations. During the period (a) The Company shall, and shall cause each of its Subsidiaries to, from and after the date of execution of this Agreement and ending on until the earlier of the Effective Time and the termination of this AgreementAgreement pursuant to Article IX (unless Parent shall otherwise approve in writing (such approval not to be unreasonably withheld, except with the prior written consent of the Offeror, acting reasonablyconditioned or delayed), and except as otherwise expressly required by law this Agreement or expressly permitted as required by a Governmental Entity or specifically contemplated by applicable Law and any Material Contract in effect prior to the date of this Agreement:
(a) Caza covenants and agrees that ), conduct its business shall be conducted only in the usual and ordinary course Ordinary Course of business Business and, to the extent consistent with past practicestherewith, and it shall use all and cause each of its Subsidiaries to use their respective commercially reasonable efforts to maintain its and preserve its businessSubsidiaries’ relations and goodwill with Governmental Entities, assets customers, suppliers, licensors, licensees, distributors, creditors, lessors, employees, agents and advantageous business relationships. Caza shall consult associates; provided that, during any period of full or partial suspension of operations in response to COVID-19 or any COVID-19 Measures, the Company or any of its Subsidiaries may, in response to COVID-19 or any COVID-19 Measures, take such actions as are reasonably necessary (x) to protect the health and safety of the Company’s or its Subsidiaries’ employees and other individuals having business dealings with the Offeror in respect Company or any of its ongoing business Subsidiaries or (y) to respond to third-party supply or service disruptions caused by COVID-19 or any COVID-19 Measures, in each case of clause (x) and affairs (y), subject to reasonable prior consultation with Parent to the extent reasonably practicable. Without limiting the generality of and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any in furtherance of the followingforegoing sentence, from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement pursuant to Article IX, except as otherwise expressly required by this Agreement, as required by a Governmental Entity or applicable Law, as approved in writing by Parent (such approval not to be unreasonably conditioned, withheld or delayed) or set forth in the corresponding subsection of Section 7.1(a) of the Company Disclosure Schedule, the Company shall not and shall cause its Subsidiaries not to:
(i) amend adopt or propose any change in its constating documents; Organizational Documents;
(ii) issue merge or consolidate with any other Person, except for any such transactions solely among Wholly Owned Subsidiaries of the Company, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its properties, assets, operations or businesses;
(iii) acquire, directly or indirectly by merger, consolidation, acquisition of stock or assets or otherwise, any business, Person, properties or assets, other than acquisitions of inventory or other goods in the Ordinary Course of Business;
(iv) transfer, sell, license, lease, divest, cancel or otherwise dispose of, or incur, permit or suffer to exist the creation of any Encumbrance (other than on exercise any Permitted Encumbrance) upon, any properties or surrender assets (tangible or intangible, including any Intellectual Property Rights), product lines or businesses of currently outstanding Caza Options)the Company or any of its Subsidiaries, including capital stock or other equity interests of any of its Subsidiaries, except in connection with (A) sales of obsolete assets, (B) nonexclusive licenses granted by the Company or its Subsidiaries with respect to Intellectual Property Rights in the Ordinary Course of Business and (C) sales of inventory or other goods in the Ordinary Course of Business;
(v) issue, sell, pledge, dispose of, grant, sell or pledge or agree to issuetransfer, grantlease, sell or pledge any securities of Cazalicense, or securities convertible into or exchangeable or exercisable forguarantee, encumber, or otherwise evidencing a right enter into any Contract or other agreement, understanding or arrangement (whether oral or written) with respect to acquirethe voting of, any shares of capital stock of the Company (including, for the avoidance of doubt, Shares) or capital stock or other equity interests of any of its Subsidiaries, securities convertible or exchangeable into or exercisable for any such shares of Caza; capital stock or other equity interests, or any options, warrants or other rights of any kind to acquire any such shares of capital stock, other equity interests or such convertible or exchangeable securities (iiiother than (A) proxies or voting agreements solicited by or on behalf of the Company in connection with the Company’s annual meeting of stockholders or (B) the issuance of shares of such capital stock, other equity securities or convertible or exchangeable securities (1) by a Wholly Owned Subsidiary of the Company to the Company or another Wholly Owned Subsidiary of the Company or (2) in respect of Company Equity Awards outstanding as of the date of this Agreement in accordance with their terms and, as applicable, the Stock Plans in effect on the Capitalization Date);
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than to or from the Company and any of its Wholly Owned Subsidiaries) and for loans or advances made to directors, officers and other employees of the Company and its Subsidiaries (x) for business-related travel, other business-related expenses, in each case, in the Ordinary Course of Business or (y) pursuant to the indemnification and advancement rights of such Persons in effect as of the date of this Agreement under any agreement between or among such Person and the Company or any Subsidiary thereof, correct and complete copies of which have been made available to Parent, or the Organizational Documents of the Company or any Subsidiary thereof;
(vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or other equity interests (including with respect to the Company, for the avoidance of doubt, Shares), except for dividends paid by any Wholly Owned Subsidiary to the Company or to any other Wholly Owned Subsidiary of the Company and for regular quarterly dividends declared and paid at such times and in such amounts as is consistent with historical practice over the twelve-month period prior to the date of this Agreement (but under no circumstances in an amount that exceeds $0.175 per Share per calendar quarter);
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire or offer to redeem, purchase or otherwise acquire, directly or indirectly, any of its outstanding capital stock, other equity interests or securities convertible or exchangeable into or exercisable for any shares of its capital stock or other equity interests (including with respect to the Company, for the avoidance of doubt, Shares);
(ix) incur any Indebtedness (including the issuance of any debt securities, warrants or other rights to acquire any debt security), except for Indebtedness in replacement of existing Indebtedness for borrowed money on terms substantially consistent with or more favorable to the Company than the Indebtedness being replaced;
(x) make or authorize any payment of, or accrual or commitment for, capital expenditures in excess of $250,000 in the aggregate, except to the extent set forth in the Company’s capital budget set forth in Section 7.1(a)(x) of the Company Disclosure Schedule;
(xi) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement, other than Contracts with customers, suppliers, agents, distributors or sales representatives (including “authorized dealers”) entered into in the Ordinary Course of Business and, for the avoidance of doubt, any Contracts entered into in connection with an action expressly permitted by any of the Subsections of this Section 7.1(a), including any material amendment, modification or supplement to an existing Contract in compliance with Section 7.1(a)(xii);
(xii) other than with respect to Material Contracts related to Indebtedness, which shall be governed by Section 7.1(a)(ix), Section 7.1(a)(vi) and Section 7.12, terminate, materially amend, materially waive, or assign, convey, encumber or otherwise transfer, in whole or in part, any material rights or interest pursuant to or in, any Material Contract, other than expirations of any such Contract in the Ordinary Course of Business and in accordance with the terms of such Contract with no further action by the Company or any of its Subsidiaries, except for any ministerial actions, or non-exclusive licenses, covenants not to sxx, releases, waivers or other rights under Intellectual Property Rights owned or purported to be owned by the Company or any of its Subsidiaries, in each case, that are granted in the Ordinary Course of Business;
(xiii) cancel, modify or waive any debts or similar claims held by the Company or any of its Subsidiaries having in each case a value in excess of $100 thousand in the aggregate;
(xiv) amend any License contemplated by Section 5.5(d) in any material respect, or allow any such License to lapse, expire or terminate (except where the lapse, expiration or termination of any such License is with respect to a License that has become obsolete, redundant or no longer required by applicable Law or for the operation of the Company’s business);
(xv) for the avoidance of doubt, except as permitted pursuant to expressly provided for by Section 7.11, amend, modify, terminate, cancel or let lapse a material Insurance Policy, unless simultaneous with such termination, cancellation or lapse, replacement self-insurance programs are established by the terms thereof Company or as permitted in accordance with one or contemplated by this Agreement; (iv) split, combine or reclassify any more of its securities; (v) adopt a plan of liquidation Subsidiaries or resolutions replacement policies underwritten by reputable insurance carriers are in full force and effect, in each case, providing coverage equal to or greater than the coverage under the terminated, canceled or lapsed Insurance Policies for the liquidationsubstantially similar premiums, dissolutionas applicable, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether as in cash shares or property) in respect of its outstanding securities without the consent effect as of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any date of the foregoing except as otherwise permitted or contemplated by this Agreement;
(cxvi) except other than with respect to Transaction Litigation, any Proceeding in connection with, arising out of or otherwise related to a demand for transactions disclosed appraisal under Section 262 of the DGCL or any Tax claim, audit, assessment or dispute, which shall be governed by Section 7.16, Section 4.2(f) and Section 7.1(a)(xviii), respectively, settle or compromise any Proceeding for an amount in excess of $100 thousand in the Disclosure Letteraggregate during any calendar year, Caza will not, or which would reasonably be expected to (A) have a materially negative impact on the operations and will not permit reputation of the Company and its Subsidiaries or (B) involve any criminal liability or any admission of material wrongdoing or any material wrongful conduct by the Company or any of its subsidiaries toSubsidiaries;
(xvii) make any changes with respect to accounting policies or procedures, directly except, in each case, as required by changes in GAAP;
(xviii) make, change or indirectlyrevoke any material Tax election, do change an annual U.S. Federal Income or other material Tax accounting period, adopt or change any material Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to material Taxes, settle or compromise any material Tax claim, audit, assessment or dispute, surrender any right to claim a refund of a material amount of Taxes, or agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of any material Tax;
(xix) cancel, abandon or otherwise allow to lapse or expire any Intellectual Property Rights that are owned by the Company or any of its Subsidiaries and are material to the following other than businesses of the Company and its Subsidiaries, except, solely with respect to Intellectual Property Rights that are not material to the businesses of the Company and its Subsidiaries, in the Ordinary Course of Business;
(xx) except as contemplated by required pursuant to the terms of any Company Benefit Plan in effect as of the date of this Agreement or pursuant to commitments as required by applicable Law, (A) increase in any manner the compensation or consulting fees, bonus, pension, welfare, fringe or other benefits, severance or termination pay of any Company Employee, (B) become a party to, establish, adopt, amend, commence participation in or terminate any Company Benefit Plan or any arrangement that would have been a Company Benefit Plan had it been entered into prior to the date of this Agreement and disclosed (other than offer letters providing for an “employment at will” relationship without any right to contractual severance, entered into with new hire employees in the Ordinary Course of Business), (C) grant any new awards, or amend or modify the terms of any outstanding awards (including, in each case, Company Equity Awards), under any Company Benefit Plan, (D) take any action to accelerate the vesting or lapsing of restrictions or payment, or fund or in any other party in writing way secure the payment, of compensation or otherwise disclosed benefits under any Company Benefit Plan, (E) change any actuarial or other assumptions used to the other party, without the prior consent of the other party, such consent not calculate funding obligations with respect to any Company Benefit Plan that is required by applicable Law to be unreasonably withheld: (i) sell, pledge, dispose of funded or encumber any assetschange the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, (F) forgive any loans or issue any loans to any Company Employee (other than routine travel advances issued in the ordinary course Ordinary Course of businessBusiness and those loans, advances, guarantees or capital contributions expressly permitted by Section 7.1(a)(vi)), (G) hire any employee or engage any independent contractor (who is a natural person) with an annual salary or wage rate or consulting fees in excess of $200,000 or (H) terminate the employment of any executive officer other than for cause;
(xxi) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, labor organization, works council or similar organization; or
(iixxii) expend agree, authorize or commit to expend do any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants foregoing.
(b) Nothing set forth in this Section 7.1(c); (iii) reorganizeAgreement shall give Parent, amalgamate, merge directly or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible forindirectly, the obligation of any other individual right to control or entitydirect the Company’s or its Subsidiaries’ operations prior to the Effective Time or give the Company, directly or make any loans indirectly, the right to control or advances;direct the Parent’s or Merger Sub’s operations prior to the Effective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Collectors Universe Inc), Merger Agreement (Collectors Universe Inc)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless SBC shall otherwise approve in writing, except with the prior written consent of the Offeror, acting reasonablywhich approval shall not be unreasonably withheld or delayed, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement or the Stock Option Agreement:
(a) Caza covenants and agrees that its business shall be conducted only , in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly Company Disclosure Letter or indirectly, do or permit to occur any of the following:as required by applicable Law):
(i) amend the business of it and its constating documents; Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(ii) issue it shall not (other than on exercise A) amend its certificate of incorporation or surrender of currently outstanding Caza Options)by-laws or amend, grant, sell modify or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to terminate the terms thereof or as permitted in accordance with or contemplated by this Rights Agreement; (ivB) split, combine combine, subdivide or reclassify any its outstanding shares of its securitiescapital stock; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (viC) declare, set aside or pay any dividend payable in cash, stock or other distribution or payment (whether in cash shares or property) property in respect of its outstanding securities without the consent any capital stock, other than per share regular quarterly cash dividends not in excess of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion$0.44 per Company Share; or (viiD) enter into repurchase, redeem or modify any contractotherwise acquire, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following Subsidiaries (other than as contemplated by this Agreement or pursuant the Company's Employee Stock Ownership Plan) to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing purchase or otherwise disclosed to the other partyacquire, without the prior consent any shares of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose its capital stock or any securities convertible into or exchangeable or exercisable for any shares of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of its capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); stock;
(iii) reorganize, amalgamate, merge neither it nor any of its Subsidiaries shall knowingly take any action that would prevent the Merger from qualifying for "pooling of interests" accounting treatment or otherwise continue with as a tax-free "reorganization" within the meaning of Section 368(a) of the Code or that would cause any other Person, corporation, partnership or other business organization whatsoever; of its representations and warranties herein to become untrue in any material respect;
(iv) acquire (by mergerneither it nor any of its Subsidiaries shall terminate, amalgamationestablish, consolidation or acquisition of shares or assets) any corporationadopt, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of businessenter into, make any investmentnew grants or awards under, either by purchase amend or otherwise modify, any Compensation and Benefit Plans or increase the salary, wage, bonus or other compensation of shares any directors, officers or securitiesemployees except (A) for grants or awards to directors, contributions officers and employees of capital it or its Subsidiaries under existing Compensation and Benefit Plans in such amounts and on such terms as are consistent with past practice, (other than to subsidiaries), property transfer, or, except B) in the ordinary normal and usual course of business, purchase any property business (which shall include normal periodic performance reviews and related compensation and benefit increases and the provision of individual Compensation and Benefit Plans consistent with past practice for promoted or assets newly hired officers and employees and the adoption of any other individual Compensation and Benefit Plans for employees of new Subsidiaries in amounts and on terms consistent with past practice) or entity; (C) for actions necessary to satisfy existing contractual obligations under Compensation and Benefit Plans existing as of the date hereof;
(v) neither it nor any of its Subsidiaries shall issue any preferred stock or incur any indebtedness for borrowed money (other than indebtedness incurred solely for the purpose of funding the Escrow Account or the replacement or refinancing of existing short-term indebtedness) or guarantee any such indebtedness if the Company should reasonably anticipate that as a result of such incurrence any of the Company's or any other material liability of its Subsidiaries' outstanding senior indebtedness would be rated lower than A by Standard & Poor's;
(vi) neither it nor any of its Subsidiaries shall make any capital expenditures in any calendar year in an aggregate amount in excess of the aggregate amount reflected in the Company's capital expenditure budget for such year, a copy of which has been provided to SBC, plus $100 million;
(vii) except as contemplated by Section 6.1(a)(iv), neither the Company nor any of its Subsidiaries shall issue, deliver, sell, or obligation encumber shares of any class of its common stock or issue any debt securities convertible into, or assumeany rights, guaranteewarrants or options to acquire, endorse any such shares except the option granted under the Stock Option Agreement, options outstanding on the date hereof under the Stock Plans, awards of options and restricted stock granted hereafter under the Stock Plans in the ordinary course of business in accordance with this Agreement and shares issuable pursuant to such options and awards;
(viii) neither it nor any of its Subsidiaries shall spend in excess of $50 million in any calendar year to acquire any business, whether by merger, consolidation, purchase of property or assets or otherwise (valuing any non-cash consideration at its fair market value as an accommodation become responsible forof the date of the agreement for such acquisition). For purposes of this clause (viii), the obligation amount spent with respect to any acquisition shall be deemed to include the aggregate amount of capital expenditures that the Company is obligated to make at any time or plans to make as result of such acquisition within two years after the date of acquisition; (ix) neither it nor its Subsidiaries shall enter any business other individual than the telecommunications business and those businesses traditionally associated with the telecommunications business or entity, enter into or make extend any loans or advances;telecommunications business outside the geographic areas served by it and its Subsidiaries as of the date of this Agreement; and
Appears in 2 contracts
Samples: Merger Agreement (SBC Communications Inc), Merger Agreement (SBC Communications Inc)
Interim Operations. During the period from (a) From the date of execution of this Agreement and ending on the earlier of until the Effective Time and the termination of this AgreementTime, except with as set forth in SECTION 5.2(a) OF THE COMPANY DISCLOSURE LETTER, unless Parent has consented in writing thereto, the prior written consent of the Offeror, acting reasonablyCompany shall, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreementshall cause its Subsidiaries to:
(ai) Caza covenants and agrees that conduct its business shall be conducted only in the usual and operations according to its ordinary course of business consistent with past practices, practice and it shall in compliance in all material respects with all applicable Laws; (ii) use all its commercially reasonable efforts to preserve intact its business organizations and goodwill, keep available the services of its officers, employees and consultants, and maintain satisfactory relationships with those Persons having business relationships with them; (iii) upon the discovery thereof, promptly notify Parent of the existence of any breach of any representation or warranty contained herein (or, in the case of any representation or warranty that makes no reference to Company Material Adverse Effect or materiality, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and preserve its businesscorrect (or, assets in the case of any representation or warranty that makes no reference to Company Material Adverse Effect or materiality, to no longer be true and advantageous business relationships. Caza shall consult correct in any material respect); (iv) promptly deliver to Parent true and correct copies of any report, statement or schedule filed with the Offeror in respect SEC subsequent to the date of this Agreement; and (v) pay its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;Taxes when due.
(b) Caza From and after the date of this Agreement until the Effective Time, except as set forth in SECTION 5.2(b) OF THE COMPANY DISCLOSURE LETTER, unless Parent has consented in writing thereto (which consent shall not be unreasonably withheld or delayed), the Company shall not, directly or indirectly, do or permit to occur any of the following:
and shall cause its Subsidiaries not to: (i) amend its constating documentsCertificate of Incorporation or By- Laws; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options)offer, grant, sell or pledge or agree to issue, grant, sell or pledge any securities shares of Cazaits capital stock or other ownership interest in the Company or its Subsidiaries, or any securities convertible into or exchangeable for any such shares or exercisable forownership interest, or otherwise evidencing a right any rights, warrants or options to acquireacquire or with respect to any such shares of capital stock, securities of Cazaownership interest, or convertible or exchangeable securities; (iii) redeem, purchase effect any stock split or otherwise acquire any of change its outstanding securities, except capitalization as permitted pursuant to it exists on the terms thereof or as permitted in accordance with or contemplated by this Agreementdate hereof; (iv) splitgrant, combine confer or reclassify award any option, warrant, convertible security or other right to acquire any shares of its securitiesor its Subsidiaries' capital stock; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or make any other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any shares of its capital stock or other ownership interests (other than such payments by the foregoing except as Subsidiaries to the Company); (vi) directly or indirectly redeem, purchase or otherwise permitted acquire any shares of its capital stock or contemplated by this Agreement;
(c) except capital stock of its Subsidiaries or any securities that are convertible into or exchangeable for transactions disclosed in any shares of capital stock of, or other equity interests in, or any outstanding options, warrants or rights of any kind to acquire any shares of capital stock of, or other equity interests in, the Disclosure Letter, Caza will not, and will not permit Company or any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: Subsidiaries; (ivii) sell, lease, license, mortgage, pledge, encumber, transfer, exchange or otherwise dispose of any of its properties or encumber any assets, except whether tangible or intangible (including capital stock of its Subsidiaries), other than the sale or disposition of inventory in the ordinary course of businessbusiness consistent with past practice or the sale, lease or other disposition of assets which individually or in the aggregate, are obsolete or not material to the Company and its Subsidiaries taken as a whole; (iiviii) expend acquire by merger or commit consolidation with, by purchase of any equity interest of or by any other manner, any business or entity or otherwise acquire any assets which would be material, individually or in the aggregate, to expend the Company and its Subsidiaries taken as a whole, except for purchases of inventory, supplies or capital equipment in the ordinary course of business and except for the acquisition of any amounts in respect business, entity or assets not having aggregate individual consideration greater than $50,000 or aggregate consideration greater than $100,000; (ix) incur or assume any long-term or short-term debt, except for working capital purposes and the purchase of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by equipment in the Offeror in writing, which for greater certainty, shall not be subject to ordinary course of business under the covenants Company's existing credit agreements set forth in this Section 7.1(c)5.2(b) of the Company Disclosure Letter; (iiix) reorganizeassume, amalgamate, merge guarantee or otherwise continue with become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, corporation, partnership or other business organization whatsoeverPerson except its Subsidiaries; (ivxi) acquire (by mergermake or forgive any loans, amalgamationadvances or capital continuations to, consolidation or acquisition of shares investments in, any other Person other than loans and advances to officers or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made employees in the ordinary course of business, make not to exceed $100,000 in the aggregate; (xii) increase the compensation (or benefits) payable to or to become payable to any investmentdirector, either by purchase officer or other employee, except for increases in salary or wages of shares non-officer employees in the ordinary course of business and consistent with past practice; (xiii) establish, adopt, enter into, materially amend, or securitiestake any action to accelerate any rights or benefits under any collective bargaining agreement or any Plan; (xiv) effect any reorganization or recapitalization; (xv) pay, contributions discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of capital ($250,000 individually and $500,000 in the aggregate, other than to subsidiaries)the payment, property transferdischarge, orsettlement or satisfaction in the ordinary course of business or in accordance with their terms, except of liabilities disclosed, reflected or reserved against in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Company SEC Reports or incurred since the date of such financial statements in the ordinary course of business, purchase or cancel any property indebtedness in excess of $10,000 individually and $50,000 in the aggregate; (xvi) take any action that would reasonably be expected to: (A) prevent, impair or assets materially delay the ability of the Company, Parent or Merger Sub to consummate the Merger or (B) cause any of the conditions to the consummation of the Merger not to be satisfied; (xvii) make or change any Tax election, file any amended Tax Return, enter into any closing agreement, settle or compromise any liability with respect to Taxes, agree to any material adjustment of any other individual Tax attribute, file any claim for a refund of Taxes, or entityconsent to any extension or waiver of the limitation period applicable to any Tax claim or assessment; or (vxviii) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse agree in writing or otherwise as an accommodation become responsible for, to take any of the obligation of any other individual or entity, or make any loans or advances;foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Integrated Defense Technologies Inc), Merger Agreement (Integrated Defense Technologies Inc)
Interim Operations. During the period from The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing, except with the prior written consent of the Offeror, acting reasonablysuch approval not to be unreasonably withheld, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement) and except as required by applicable Law, the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practice and to the extent consistent therewith, the Company and its Subsidiaries shall use their respective commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, landlords, licensors, licensees, employees and business associates. Notwithstanding the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (i) as otherwise contemplated by this Agreement, (ii) as Parent may approve in writing (such approval not to be unreasonably withheld), (iii) as is required by applicable Law or by any Governmental Entity or (iv) as set forth in Section 6.1 of the Company Disclosure Schedule, the Company will not and will not permit its Subsidiaries to:
(a) Caza covenants and agrees that adopt or propose any change in its business shall be conducted only in the usual and ordinary course certificate of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect incorporation (including by way of its ongoing business and affairs and keep the Offeror apprised any certificates of all material developments relating theretodesignation) or bylaws or other applicable governing instruments;
(b) Caza shall not, directly merge or indirectly, do consolidate the Company or permit to occur any of its Subsidiaries with any other Person, except for any such transactions among wholly owned Subsidiaries of the following:Company;
(c) acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $500,000 in any transaction or series of related transactions, other than acquisitions pursuant to Contracts in effect as of the date of this Agreement, all of which are identified on Section 5.1(q) of the Company Disclosure Schedule;
(d) issue, sell, dispose of, grant, transfer or subject to any Lien, or authorize the issuance, sale, disposition, grant or transfer of or Lien on, any shares of capital stock of the Company or any of its Subsidiaries, including, without limitation shares of Series A Junior Participating Preferred Stock (in each case, other than (i) amend its constating documents; the issuance or grant of Shares upon the exercise of Company Options that are outstanding as of the date hereof, or (ii) issue (the issuance of capital stock or other than on exercise equity interests by a wholly owned Subsidiary of the Company to the Company or surrender of currently outstanding Caza Optionsanother wholly owned Subsidiary), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible or exchangeable into or exchangeable exercisable for any such capital stock or exercisable forother equity interests, or otherwise evidencing a right any options, warrants or other rights of any kind to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any shares of its outstanding such capital stock or such convertible or exchangeable securities;
(e) make any loans, except as permitted pursuant advances or capital contributions to or investments in any Person (other than the terms thereof Company or as permitted any direct or indirect wholly owned Subsidiary of the Company) in accordance with or contemplated by this Agreement; excess of $500,000 in the aggregate;
(iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vif) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (except for (i) one quarterly dividend to be issued by the foregoing except as otherwise permitted Company in its fourth fiscal quarter ended March 3, 2007, not to exceed $0.04 per Share in the aggregate, and (ii) dividends paid by any direct or contemplated by this Agreementindirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(cg) except for transactions disclosed in the Disclosure Letterreclassify, Caza will notsplit, and will not permit any of its subsidiaries tocombine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, do any of the following other than as contemplated by this Agreement its capital stock or pursuant to commitments entered securities convertible or exchangeable into prior to the date or exercisable for any shares of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of its capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital stock (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets acquisition of any such capital stock or other individual securities tendered by current or entity; former employees or directors in connection with the exercise of currently outstanding Company Options);
(vh) incur any indebtedness for borrowed money or any guaranty such indebtedness of another Person (other material liability or obligation than a wholly owned Subsidiary of the Company), or issue or sell any debt securities or assumewarrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, guaranteeexcept in each case for indebtedness, endorse in the ordinary course of business and consistent with past practice, for borrowed money under credit facilities, lines of credit and other debt or borrowing arrangements reflected in the Financial Statements; provided, however that neither the Company nor its Subsidiaries shall draw down on any amounts under its existing credit facilities except to the extent necessary to comply with letters of credit, under credit facilities, lines of credit and other debt or borrowing arrangements reflected in the Company's most recent financial statements included in the Company Reports issued from time to time in the ordinary course of business in an amount not to exceed $1,000,000 in the aggregate outstanding at any given time;
(i) make any material changes with respect to accounting policies or procedures, except as required by changes in GAAP or Law or by a Governmental Entity;
(j) make, alter or revoke any Tax accounting method or material Tax election, or settle or compromise any Tax liability or otherwise pay or consent to any assessment as the result of an accommodation audit, file any amended Tax Return, enter into any closing agreement relating to Taxes, or waive or extend the statute of limitations in respect of Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business);
(k) transfer, sell, lease, exclusively license, surrender, divest, cancel, abandon or otherwise dispose of, or subject to any Lien, any assets, product lines or businesses of the Company or its Subsidiaries, other than inventory, supplies and other assets in the ordinary course of business consistent with past practice;
(l) except as expressly contemplated by this Agreement, required pursuant to the Benefit Plans in effect on the date of this Agreement disclosed in Section 5.1(h)(i) of the Company Disclosure Schedule, pursuant to any employment or separation agreement disclosed in Section 5.1(h)(vi) of the Company Disclosure Schedule or any collective bargaining agreement disclosed in Section 5.1(m) of the Company Disclosure Schedule, or as otherwise required by applicable Law, including to comply with Section 409A of the Code, (i) grant or provide any severance or termination payments or benefits to any officers, employee, independent contractor or consultant of the Company or any of its Subsidiaries, (ii) increase (or commit to increase) the compensation, perquisites or benefits payable to any director, officer, employee, independent contractor or consultant of the Company or any of its Subsidiaries, except for increases with respect to non-executive employees in the ordinary course of business consistent with past practice, (iii) enter into any new, or amend the terms of any existing, employment agreement or Benefit Plan with any member of management of the Company or any of its Subsidiaries, (iv) grant any equity or equity-based awards that may be settled in Shares or any other equity securities of the Company or any of its Subsidiaries or the value of which is linked directly or indirectly, in whole or in part, to the price or value of any Shares or other equity securities of the Company or any of its Subsidiaries, (vi) accelerate the vesting or payment of compensation payable or benefits provided or to become responsible forpayable or provided to any current or former director, officer, employee, independent contractor or consultant, (vii) change the terms of any outstanding Company Option, or (viii) terminate or materially amend any existing, or adopt any new, Benefit Plan (other than changes that may be necessary to comply with applicable Law, in each case that do not materially increase the costs of any such Benefit Plans); provided, however, that the manner of any change, amendment or acceleration to comply with Section 409A of the Code must be approved by Parent, which approval shall not be unreasonably withheld or delayed);
(m) enter into, amend or extend any collective bargaining agreement or other labor agreement;
(n) enter into, amend or modify any agreement of the type described in Section 5.1(s);
(o) make any capital expenditures in excess of $100,000 individually or $300,000 in the aggregate over and above those capital expenditures identified in the capital expenditure plan set forth in Section 6.1(o) of the Company Disclosure Schedule;
(p) enter into any rights agreement, establish any stockholder rights plan (or similar plan commonly referred to as a "poison pill") or enter into any Contract (in each case other than the Stock Plans existing on the date hereof and Company Options issued thereunder) under which the Company or any of its Subsidiaries is or may become obligated to sell or otherwise issue, register, redeem, repurchase, vote, transfer or dispose of any shares of its capital stock or any other securities; or
(q) except as provided in Section 6.2 and Section 6.3, agree, authorize or commit to do any of the foregoing. Nothing contained in this Agreement (including, without limitation, this Section 6.1) is intended to give Parent, directly or indirectly, the obligation right to control or direct the Company's or any of its Subsidiaries' operations prior to the Effective Time, and nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent's or any of its Subsidiaries' operations. Prior to the Effective Time, each of Parent, Merger Sub and the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries' respective operations. Subject to the immediately preceding paragraph, in connection with the continued operation of the Company and the Subsidiaries, the Company will reasonably confer in good faith on a regular basis with one or more representatives of Parent, designated by Parent to the Company in writing, regarding operational matters, and the general status of ongoing operations of the Company and will notify Parent promptly of any other individual event or entityoccurrence that has had or may reasonably be expected to have a Company Material Adverse Effect or that, individually or in the aggregate, has materially delayed or impaired, or make would reasonably be expected to materially delay or impair, consummation of the transactions contemplated by this Agreement, or that, individually or in the aggregate, has resulted, or would reasonably be expected to result, in the failure by the Company to comply with or satisfy in any loans material respect any condition set forth in Section 7.1 or advances;7.2; provided, however, that no such notification shall affect the covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. The Company acknowledges that Parent does not and will not waive any rights it may have under this Agreement as a result of such notice or consultations.
Appears in 2 contracts
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement and ending on the earlier of prior to the Effective Time and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably(unless Parent shall otherwise approve in writing, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement) and except as required by applicable Laws, the business of it and 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 reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Authorities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of, and in furtherance of, the foregoing, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed) or (C) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(ai) Caza covenants and agrees that adopt or propose any change in its Certificate of Formation or By-Laws or other applicable governing instruments;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly-owned Subsidiaries of the Company, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) acquire assets outside of the ordinary course of business shall be conducted only from any other Person with a value or purchase price in the usual and aggregate in excess of $250,000 in any transaction or series of related transactions, other than acquisitions pursuant to Company Contracts in effect as of the date of this Agreement;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) create or incur any Lien material to the Company or any of its Subsidiaries not incurred in the ordinary course of business consistent with past practicespractice, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoexcept for any Permitted Liens;
(bvi) Caza shall not(A) make any loan or loan commitment to any Person which would, directly when aggregated with all outstanding loans or indirectlyloan commitments or any renewals or extensions thereof made to such Person and any Affiliate or immediate family member of such Person, do exceed $500,000 or permit to occur any of the following:
(iB) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire sell any loan or loan participation, individually or in bulk, in one or a series of related transactions in excess of $500,000 in the aggregate, in each case, without first informing the deputy chief credit officer of Hanmi Bank two (2) full Business Days prior to taking such action and considering in good faith his views and receiving the approval of United Central Bank’s Chief Executive Officer, at a minimum, and any committee as required by United Central Bank’s current loan authority policy and administration. Neither the Company nor any of its outstanding securitiesAffiliates shall forgive any loans to directors, except as permitted pursuant to the terms thereof officers or as permitted in accordance with or contemplated by this Agreement; employees;
(iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vivii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to or declare or make any distribution on, any of its capital stock (except for dividends paid by any direct or indirect wholly-owned Subsidiary to the foregoing except as otherwise permitted Company or contemplated by this Agreementto any other direct or indirect wholly-owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(cviii) except for transactions disclosed in to make changes that are required by applicable Law or to satisfy contractual obligations existing as of the date hereof which are listed on Section 6.1(a)(viii) of the Company Disclosure Letter, Caza will not(A) terminate, and will not permit enter into, amend or renew (or communicate any of its subsidiaries tointention to take such action) any Benefit Plans, directly or indirectly, do any of the following other than as contemplated routine amendments to health and welfare plans (other than severance plans) that do not increase benefits or result in materially increased administrative costs, (B) grant any salary or wage increase, other than annual increases in salary and wages for employees who are not officers by this Agreement or pursuant to commitments entered into prior to no more than 5% in the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except aggregate in the ordinary course of business; business consistent with past practice, (iiC) expend pay any bonus or commit to expend incentive compensation in excess of the amount earned based on actual performance, (D) grant any amounts new award, amend the terms of outstanding awards or change the compensation opportunity under any Benefit Plan, (E) set any bonus metrics or targets, (F) pay any severance in respect excess of capital expenses, excluding certain expenditures which may be agreed to, from time to time, payments by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge Company or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities its Subsidiaries made in the ordinary course of businessbusiness consistent with past practice, make (G) take any investmentaction to fund or secure the payment of any amounts under any Benefit Plan, either (H) change any assumptions used to calculate funding or contribution obligations under any Benefit Plan, other than as required by purchase GAAP (I) hire any employee or consultant with annualized cash compensation opportunities in excess of shares or securities$150,000, contributions of capital (other than to subsidiaries)fill vacancies of persons who are not officers or (J) terminate any officer or other person with an annual compensation opportunity in excess of $150,000 other than for “cause”;
(ix) reclassify, property transfersplit, orcombine, except in the ordinary course of businesssubdivide or redeem, purchase or otherwise acquire, directly or indirectly, any property of its capital stock or assets securities convertible or exchangeable into or exercisable for any shares of any other individual or entity; its capital stock;
(vx) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, for the obligation long-term indebtedness of any other individual Person (other than (A) deposits and similar liabilities in the ordinary course of business consistent with past practice (B) indebtedness of the Company’s Subsidiaries to the Company and (C) short term advances from the Federal Home Loan Bank in the ordinary course of business consistent with past practice);
(xi) except as set forth in the capital budgets set forth in Section 6.1(a)(xi) of the Company Disclosure Letter and consistent therewith, make or entityauthorize any capital expenditure in excess of $250,000 in the aggregate during any twelve (12) month period;
(xii) enter into any contract that would have been a Material Contract had it been entered into prior to this Agreement;
(xiii) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;
(xiv) enter into any settlement, compromise or similar agreement with respect to, any action, suit, proceeding, order or investigation before a Governmental Authority, individually or with respect to multiple actions, suits, proceedings, orders or investigations arising generally out of the same set of facts or circumstances, for an amount greater than $250,000 in excess of applicable and confirmed insurance coverage or specific loss reserves reflected on the Company Interim Financial Statements, or any obligation or liability of the Company in excess of such amount, or would impose any material restriction on the business of Parent or the Surviving Corporation or create adverse precedent for claims that are reasonably likely to be material to Parent, the Company or the Surviving Corporation;
(xv) amend, modify or terminate any Material Contract, or cancel, modify or waive any material debts or claims held by it or waive any rights having in each case a value in excess of $500,000 other than any loan restructures or workouts in the ordinary course of business and following prior consultation with the deputy chief credit officer of Hanmi Bank;
(xvi) sell, transfer, lease, license, guarantee, mortgage, pledge, encumber or otherwise create any Lien on, dispose of or discontinue any of its assets, deposits, business or properties (other than sales of loans and loan participations pursuant to Section 6.1(a)(vi)) except in the ordinary and usual course of business consistent with past practice and in a transaction that, together with all other such transactions, is not material to the Company and its Subsidiaries, taken as a whole;
(xvii) except as required by applicable Law or the Federal Reserve Board, the FDIC, the CDBO or the TDB, (A) implement or adopt any material change in its interest rate and other risk management policies, procedures or practices, (B) fail to follow in all material respects, the Company’s or its applicable Subsidiary’s existing policies or practices with respect to managing its exposure to interest rate and other risk or (C) fail to use commercially reasonable efforts to avoid any material increase in the Company’s aggregate exposure to interest rate risk;
(xviii) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied;
(xix) (A) other than in accordance with the Company’s or any of its Subsidiaries’ investment policies in effect on the date hereof or in securities transactions as provided in (B) below, make any loans investment either by contributions to capital, property transfers or advancespurchase of any property or assets of any Person or (B) other than purchases of direct obligations of the United States of America or obligations of United States government agencies which are entitled to the full faith and credit of the United States of America, in any case with a remaining maturity at the time of purchase of one year or less, purchase or acquire securities of any type; provided, however, that the Company shall notify Parent of the purchase of any investment security in writing within one (1) Business Day after such purchase, and such notice shall describe in detail the investment securities purchased and the price thereof), and provided, further, that the Company shall consult with Parent from time to time regarding the Company’s investment securities policies and consider in good faith the views of Parent with respect thereto.
(xx) (A) commence or settle any litigation or proceeding with respect to any liability for material Taxes, take any action which is reasonably likely to have an adverse impact on the Tax position of the Company or, after the Merger, which is reasonably likely to have an adverse impact on the Tax position of Parent or the Surviving Corporation, (B) except in the ordinary and usual course of business consistent with past practice, make or change any material express or deemed Tax election, file any amended Tax Return or change any of its methods of reporting income or deductions for Tax purposes or (C) take any other action with respect to Taxes that is outside the ordinary and usual course of business or inconsistent with past practice;
(xxi) make application for the opening, relocation or closing of any, or open, relocate or close any, branch office, loan production office or other significant office or operations facility of it or any of its Subsidiaries;
(xxii) enter into any new line of business or, other than in the ordinary course of business consistent with past practice, change in any material respect its lending, investment, underwriting, risk and asset liability management and other banking and operating, securitization and servicing policies, as applicable (including any change in the maximum ratio or similar limits as a percentage of its capital exposure applicable with respect to its loan portfolio or any segment thereof), except as required by applicable Law or policies imposed by any Governmental Authority; or
(xxiii) agree, authorize or commit to do any of the foregoing.
(b) Prior to making any written or oral communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
(c) Parent shall not knowingly take or permit any of its Subsidiaries to take any action that is reasonably likely to prevent the consummation of the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hanmi Financial Corp), Merger Agreement (Hanmi Financial Corp)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably(unless Parent shall otherwise approve in writing (such approval not to be unreasonably withheld or delayed)), and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement, as set forth in Section 6.1 of the Company Disclosure Letter or as required by applicable Laws, the business of it and 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 reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), (C) as set forth in Section 6.1 of the Company Disclosure Letter or (D) as required by applicable Laws, the Company will not and will not permit its Subsidiaries to:
(i) adopt or propose any change in its articles of incorporation or by-laws or other applicable governing instruments;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, or restructure, reorganize or completely or partially liquidate any operations or businesses;
(iii) acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in excess of $1 million in the aggregate, other than acquisitions pursuant to Contracts in effect as of the date of this Agreement;
(iv) except for the issuance of Shares upon the exercise of Company Options outstanding on the date of this Agreement or in accordance with the terms of the 401(k) Plans as in effect on the date of this Agreement, issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than the issuance of shares by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) create or incur any Encumbrance (other than the exclusion set forth in clauses (a) Caza covenants and agrees that (d) of the definition of Encumbrance) on any assets of the Company or any of its business shall be conducted only Subsidiaries;
(vi) make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company);
(vii) other than regular quarterly cash dividends on Shares of $0.18 per Share and the Special Dividend, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(ix) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for indebtedness for borrowed money incurred in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(bx) Caza shall notexcept as set forth in the capital budgets set forth in Section 6.1(a)(x) of the Company Disclosure Letter and consistent therewith, directly make or indirectlyauthorize any capital expenditure in excess of $2 million in the aggregate;
(xi) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement, except for customer Contracts entered into in the ordinary course of business consistent with past practice that do or permit to occur not contain any of the following:provisions referred to in Section 5.1(j)(i)(F);
(xii) make any changes with respect to accounting policies or procedures, except as required by changes in applicable generally accepted accounting principles, the rules or policies of the Public Company Accounting Oversight Board or applicable Law;
(xiii) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $500,000 or any claim against the Company in excess of such amount;
(xiv) (i) amend or modify any Material Contract in any material respect or in manner adverse to the Company or its constating documents; Subsidiaries, (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge terminate any securities of CazaMaterial Contract, or securities convertible into (iii) cancel, modify or exchangeable waive any debts or exercisable forclaims held by it or waive any rights having in each case a value in excess of $500,000;
(xv) make any material Tax election, settle any material Tax claim or change any material method of Tax accounting;
(xvi) transfer, sell, lease, license, mortgage, pledge, suffer a Lien, divest, abandon, or allow to lapse or expire, or otherwise evidencing a right to acquiredispose of any assets, securities product lines or businesses of Caza; (iii) redeemthe Company or its Subsidiaries, purchase or otherwise acquire including capital stock of any of its outstanding securitiesSubsidiaries, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; ordinary course of business or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any sales of the foregoing except as otherwise permitted or contemplated by this Agreementobsolete assets;
(cxvii) except for transactions disclosed as provided in the Disclosure LetterSection 6.9(g), Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or required pursuant to commitments entered into existing agreements in effect prior to the date of this Agreement and disclosed to the other party set forth in writing or otherwise disclosed to the other party, without the prior consent Section 5.1(h)(i) of the other partyCompany Disclosure Letter, such consent not to be unreasonably withheld: or as otherwise required by applicable Law, (i) sellgrant or provide any severance or termination payments or benefits to any director, pledgeofficer or employee of the Company or any of its Subsidiaries, dispose except, in the case of or encumber any assetsemployees who are not officers, except in the ordinary course of business; business consistent with past practice as disclosed to the Parent prior to the date hereof, (ii) expend increase the compensation, bonus or commit to expend pension, welfare, severance or other benefits of, pay any amounts in respect of capital expenses, excluding certain expenditures which may be agreed bonus to, from time or make any new equity awards to timeany director, by officer or employee of the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge Company or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, orits Subsidiaries, except for investments increases in securities made base salary or bonus in the ordinary course of businessbusiness consistent with past practice for employees who are not officers, make (iii) establish, adopt, amend or terminate any investment, either by purchase of shares Benefit Plan or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in amend the ordinary course of business, purchase any property or assets terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other individual way secure the payment, of compensation or entity; benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (v) incur change any indebtedness for borrowed money actuarial or other assumptions used to calculate funding obligations with respect to any U.S. Benefit Plan or Non-U.S. Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to directors, officers or employees of the Company or any other of its Subsidiaries.
(xviii) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied;
(xix) perform any services or provide any products to any Person that would expand in any material liability respect the scope of services or obligation products subject to any non-compete provision to which the Company or issue any debt securities of its Subsidiaries is subject; or assume(xx) agree, guaranteeauthorize or commit to do any of the foregoing.
(b) Prior to making any written or broad-based oral communications to the directors, endorse officers or otherwise employees of the Company or any of its Subsidiaries pertaining to the effect upon employment, compensation or benefit matters that will result as an accommodation become responsible fora consequence of the transactions contemplated by this Agreement, the obligation Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any other individual such mutually agreeable communication.
(c) From the date of this Agreement until Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as the Company may approve in writing (such approval not to be unreasonably withheld or entitydelayed), (C) as set forth in Section 6.1(c) of the Parent Disclosure Letter or make (D) as required by applicable Laws, Parent will not and will not permit its Subsidiaries to take any loans action or advances;omit to take any action that is reasonably likely to result in any of the conditions to the Closing set forth in Article VII not being satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Banta Corp), Merger Agreement (Banta Corp)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing, except with the prior written consent of the Offerorsuch approval not to be unreasonably withheld, acting reasonablyconditioned or delayed, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement), the business of it and its Subsidiaries shall be conducted in the ordinary and usual course and it and its Subsidiaries shall use their respective reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of, and in furtherance of, the foregoing, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as Parent may approve in writing, such approval not to be unreasonably withheld, conditioned or delayed, (C) as contemplated by the IP Group Sale and Trust Distribution as described in the term sheet attached hereto as Exhibit B or (D) as expressly set forth on Section 5.1(a) of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(ai) Caza covenants and agrees that amend any of its business shall be conducted only organizational documents, except as specifically required by this Agreement;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing changes or restrictions on its assets, operations or businesses;
(iii) acquire from any other Person any asset or group of related assets with a value or purchase price in excess of $25,000 individually or $100,000 in the usual aggregate, in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or Encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than the issuance of shares by a Subsidiary of the Company to the Company or a wholly owned Subsidiary of the Company), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) create or incur any Encumbrances on any FCC Licenses, or create or incur any Encumbrances on any other asset or group of related assets of the Company or any of its Subsidiaries having a value in excess of $25,000 individually or $100,000 in the aggregate;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company), except in the ordinary course of business consistent with past practice and in no event in excess of $10,000 individually or $25,000 in the aggregate;
(vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, (except for dividends paid by any direct or indirect Subsidiary of the Company to its stockholders or unit-holders on a pro rata basis in the ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts ) or enter into any agreement with respect to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect voting of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretocapital stock;
(bviii) Caza shall notreclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, capital stock or securities convertible or exchangeable into or exchangeable exercisable for any shares of its capital stock;
(ix) incur any indebtedness for borrowed money or exercisable forguarantee such indebtedness of another Person, or otherwise evidencing a right issue or sell any debt securities or warrants or other rights to acquire, securities acquire any debt security of Caza; (iii) redeem, purchase the Company or otherwise acquire any of its outstanding securitiesSubsidiaries, except as permitted pursuant to for indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices (A) in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the terms thereof of the indebtedness being replaced as of the date of such replacement, or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or propertyB) in respect connection with guarantees by the Company of its outstanding securities without the consent indebtedness of wholly owned Subsidiaries of the Offeror, which consent may be withheld in Company as of the Offeror’s sole and absolute discretion; or Effective Time complying with clause (viiA) above;
(x) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement and disclosed Agreement, unless it is on terms substantially consistent with, or on terms more favorable to the other party Company and/or its Subsidiaries (and to Parent and its Subsidiaries and Affiliates following the Closing) than, a Contract it is replacing;
(xi) amend, modify or terminate any Material Contract, or waive, release or assign any material rights, claims or benefits under any Material Contract, in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, each case except in the ordinary course of business; business consistent with past practices;
(iixii) expend make any changes with respect to accounting policies or commit to expend procedures, except as required by changes in applicable generally accepted accounting principles, by Regulation S-X under the Securities Act, or by the Public Company Accounting Oversight Board or Financial Accounting Standards Board;
(xiii) settle (x) any litigation or claim or (y) other proceedings before a Governmental Entity, in each case for an amount in excess of $25,000 (excluding amounts in respect of capital expenses, excluding certain expenditures which that may be agreed topaid under insurance policies);
(xiv) except as required by applicable Law, from time (A) make any Tax election that is material to timethe Company and its Subsidiaries, by taken as a whole, or take any position that is material to the Offeror Company and its Subsidiaries, taken as a whole, on any material Tax Return filed on or after the date of this Agreement, that is inconsistent with elections made or positions taken in writingprior periods, (B) change any material method of Tax accounting, which for greater certainty, shall not be subject change is material to the covenants set forth Company and its Subsidiaries, taken as a whole, (C) amend any Tax Return with respect to an amount of Taxes that is material to the Company and its Subsidiaries, taken as a whole, or (D) settle or resolve any Tax controversy that is material to the Company and its Subsidiaries, taken as a whole, other than, in this Section 7.1(c); (iii) reorganizeeach case, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of businessbusiness consistent with past practice;
(xv) transfer, make sell, lease, assign, license, surrender, divest, forfeit, cancel, abandon or allow to lapse or expire, fail to extend or defend or otherwise dispose of any investmentpart of its assets (including material Intellectual Property), either by purchase FCC Licenses, securities or equity of shares any Subsidiary, licenses, operations, rights, product lines, businesses or securitiesinterests therein of the Company or its Subsidiaries, contributions except (A) in connection with services or products provided in the ordinary course of capital business consistent with past practices or sales of obsolete assets, or (B) for sales, leases, licenses or other dispositions of any asset or any group of related assets (other than FCC Licenses or wireless spectrum) with a fair market value not in excess of $100,000 individually or $250,000 in the aggregate;
(xvi) make or commit to subsidiaries), property transfer, orany capital expenditures other than in the ordinary course of business consistent with past practice and in the aggregate in any event not in excess of $100,000;
(xvii) enter into any Contract pursuant to which the Company or any of its Subsidiaries agrees to provide any wireless services to any Person as an agent or reseller if such Contract is not terminable by the Company or one of its Subsidiaries on 60 days’ or less notice without penalty;
(xviii) hire or rehire any new or additional employees or terminate any current employees, except in the ordinary course of business, purchase consistent with past practice;
(xix) except as required pursuant to a Benefit Plan or existing written, binding agreements as in effect as of the date of this Agreement, or as otherwise required by applicable Law, (A) grant new or increase existing compensation, severance or other benefits payable or to become payable to any property director, officer or assets employee of the Company or any of its Subsidiaries, (B) adopt, enter into, establish, or materially amend, modify or terminate any Benefit Plan or any arrangement that would constitute a Benefit Plan had it been in effect as of the date of this Agreement or (C) take any action to accelerate the vesting or payment, or fund or in any other individual way secure the payment, of compensation or entitybenefits under any Benefit Plan (including any equity-based awards), except to the extent expressly required by any such Benefit Plan or provided in this Agreement; or
(vxx) incur agree, authorize or commit to do any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, of the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Straight Path Communications Inc.), Merger Agreement (Straight Path Communications Inc.)
Interim Operations. During the period from (a) From and after the date of execution of this Agreement and ending on the earlier of to the Effective Time and Time, unless Purchaser has consented in writing thereto, the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonablyCompany shall, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreementshall cause each of its Subsidiaries to:
(ai) Caza covenants conduct their respective businesses and agrees that its business shall be conducted operations only in the usual its usual, regular and ordinary course of business consistent with past practices, and it shall practice;
(ii) use all commercially their reasonable efforts to (A) preserve intact their business organizations, (B) maintain in effect all existing material qualifications, licenses, permits, approvals and other authorizations referred to in Section 5.1 and Section 5.12, (C) keep available the services of the officers and key employees of the Company and each Subsidiary, and (D) preserve its businessexisting relationships with material customers and suppliers and those Persons having business relationships with them;
(iii) promptly upon the discovery thereof notify Purchaser of the existence of any breach of any representation or warranty contained herein (or, assets in the case of any representation or warranty that makes no reference to Company Material Adverse Effect, any breach of such representation or warranty in any material respect) or the occurrence of any event that would cause any representation or warranty contained herein no longer to be true and advantageous business relationships. Caza shall consult correct (or, in the case of any representation or warranty that makes no reference to Company Material Adverse Effect, to no longer be true and correct in any material respect);
(iv) promptly deliver to Purchaser copies of any report, statement or schedule filed with the Offeror in respect SEC subsequent to the date of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;this Agreement.
(b) Caza Without limiting the generality of the foregoing, from and after the date of this Agreement to the Effective Time, unless Purchaser has consented in writing thereto, the Company shall not, directly or indirectly, do or and shall not permit to occur any of the followingits Subsidiaries to:
(i) propose to its stockholders or amend its constating documents; certificate of incorporation or bylaws or comparable governing instruments, except for any amendment required in connection with the performance by the Company or its Subsidiaries of their respective obligations under this Agreement;
(ii) issue grant, issue, sell, pledge, encumber, transfer, deliver or register for issuance or sale any shares of capital stock or other ownership interest in the Company (other than issuances of Common Stock pursuant to (A) the exercise of Options outstanding on the date hereof or (B) the conversion of any Class B Common Stock outstanding on the date hereof into Class A Common Stock) or any of its Subsidiaries (other than issuances of capital stock of the Company’s Subsidiaries pursuant to the exercise or surrender of currently Options outstanding Caza Optionson the date hereof), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable for any such shares or exercisable forownership interest, or otherwise evidencing a any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest or convertible or exchangeable securities; or accelerate any right to acquire, convert or exchange or acquire any securities of Caza; the Company (other than Options pursuant to Sections 4.2(d) and 5.2(c)) or any of its Subsidiaries for any such shares or ownership interest;
(iii) effect any stock split, combination, reclassification or conversion of any of its capital stock or otherwise change its capitalization as it exists on the date hereof;
(iv) directly or indirectly redeem, purchase or otherwise acquire acquire, or offer to redeem, purchase or otherwise acquire, any shares of its capital stock or capital stock of any of its outstanding securitiesSubsidiaries, except as permitted pursuant to other than by repurchasing restricted stock or upon the terms thereof cashless exercise of options, in each case in the ordinary course of business;
(v) sell, lease, license, encumber or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify otherwise dispose of any of its securities; assets (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent including Intellectual Property of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; Company or (vii) enter into its Subsidiaries or modify any contract, agreement, commitment or arrangement with respect to any capital stock of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assetsSubsidiaries), except in the ordinary course of business; business (iiexcluding capital stock of its Subsidiaries);
(vi) expend merge with or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamationconsolidation, consolidation or acquisition of shares stock or assets, joint venture or otherwise of a direct or indirect ownership interest or investment) in one transaction or a series of related transactions any corporationPerson, partnership for an aggregate consideration in excess of $1.0 million, any equity interests or other securities of any Person, any division or business organization of any Person or division thereof, or, except for investments in securities made in all or substantially all of the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; Person;
(vvii) incur or assume any indebtedness for borrowed money money, issue or any other material liability or obligation or issue sell any debt securities of the Company or any of its Subsidiaries or assume, guarantee, endorse or otherwise as an accommodation become liable or responsible for(whether directly, contingently or otherwise) for the obligation obligations of any other individual Person (except wholly owned Subsidiaries of the Company or entityin the ordinary course of business up to $1.0 million), in any such case in excess of $1.0 million, except for the incurrence of indebtedness for working capital purposes in the ordinary course of business under the Company’s or its Subsidiaries’ existing credit facilities and capital expenditures made in accordance with the Company’s or its Subsidiaries’ previously adopted capital budgets, copies of which have been provided to Purchaser;
(viii) make or forgive any loans, advances or capital contributions to, or investments in, any other Person;
(ix) (A) enter into any new employment, severance, consulting or salary continuation agreements with any newly hired employees other than in the ordinary course of business or enter into any of the foregoing with any existing officers or directors or alter or amend in any way, except as may be required by Law or pursuant to any Contract or commitment in existence as of the date hereof, any compensation or benefits due to employees other than increases or new incentive awards in the ordinary course of business consistent with past practices; (B) except as required by Law or any existing Company Employee Plan or Material Contract or in the ordinary course of business consistent with past practice, increase the amount of compensation of or grant new incentive awards to any director or officer of the Company or any of its Subsidiaries other than annual restricted stock granted to directors; (C) except as required by Law, a Material Contract existing on the date hereof or pursuant to a Company severance policy or Company Employee Plan existing on the date hereof, grant any severance or termination pay to any director or officer of the Company or any of its Subsidiaries; (D) except as required by Law, adopt any additional employee benefit plan; (E) except as required by any existing Company Employee Plan or agreement thereunder, provide for the payment of any amounts as a result of the consummation of the transactions contemplated by this Agreement; or (F) pay any bonuses except to the extent earned under existing awards or new incentive awards listed in Section 5.10(h)(i)(6) of the Company Disclosure Letter;
(x) adopt or amend in any material respect or terminate any employee benefit plan or arrangement;
(xi) make any loans material changes in the type or advancesamount of their insurance coverage or permit any material insurance policy naming the Company or any of its Subsidiaries as a beneficiary or a loss payee to be canceled or terminated other than in the ordinary course of business;
(xii) except as required by changes in applicable Law or GAAP, change any accounting methods, principles or practices used by the Company or its Subsidiaries, in each case, as concurred by its independent public accountants;
(xiii) (A) settle, pay or discharge, any litigation, investigation, arbitration, proceeding or other claim, liability or obligation arising from the conduct of business in the ordinary course for an amount in excess of $1.0 million, except for any settlement, payment or discharge by FTD, Inc. and XXX.XXX Inc. of their obligations under that certain Stipulation and Agreement of Compromise, Settlement and Release, dated as of August 4, 2003 (the “Stipulation”) entered into in settlement of the consolidated shareholder class actions entitled “In re XXX.XXX, Inc. Shareholders Litigation,” Delaware Xxxxxxxx Xxxxx Xxxx Xx. 00000-XX, provided, that the Settlement (as defined in the Stipulation) has not been and shall not be changed or altered in any material way since the date of such Stipulation;
Appears in 2 contracts
Samples: Merger Agreement (FTD Inc), Merger Agreement (FTD Inc)
Interim Operations. During the period from (a) The Debtor covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement and ending on prior to the earlier of the Effective Time and the termination of this AgreementClosing, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or as otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with expressly required or contemplated by this Agreement; , (ii) as Parent may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed), (iii) as otherwise required by applicable Laws or (iv) splitas set forth in Section 4.1 of the Debtor Disclosure Letter, combine or reclassify any the Business shall be conducted in the ordinary and usual course and, to the extent consistent therewith, the Debtor and its Subsidiaries shall use their respective commercially reasonable efforts to preserve their business organizations intact, preserve governmental licenses, permits, consents, approvals, authorizations and qualifications and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates, and keep available the services of its securities; and its Subsidiaries’ present employees and agents. Without limiting the generality of, and in furtherance of, the foregoing, from the date of this Agreement until the Closing, except (vi) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted expressly required or contemplated by this Agreement;
, (cii) except for transactions disclosed as Parent may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed), (iii) as otherwise required by applicable Laws or (iv) as set forth in Section 4.1 of the Debtor Disclosure Letter, Caza the Debtor will not, not and will not permit any of its subsidiaries Subsidiaries to, directly :
(i) adopt or indirectly, do propose any change in its certificate of incorporation or by-laws or other applicable governing instruments;
(ii) merge or consolidate the Debtor or any of its Subsidiaries with any other Person, or restructure, reorganize or completely or partially liquidate the following Debtor or any of its Subsidiaries or otherwise enter into any agreements providing for the sale of their respective material assets, operations or business (other than the sale or disposition of obsolete or worn-out assets in the ordinary course of business);
(iii) acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $1,000,000 in any transaction or series of related transactions, other than acquisitions pursuant to Contracts in effect as contemplated by of the date of this Agreement or pursuant which have been provided to commitments entered into Parent prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; Agreement;
(iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereofthereof or collection of assets constituting all or substantially all of a business or business unit, orwhether by merger or consolidation, purchase of substantial assets or equity interest or any other manner, from any other Person;
(v) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any shares of capital stock of the Debtor or any of its Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary of the Debtor to the Debtor or another wholly-owned Subsidiary), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(vi) create or incur any Lien securing indebtedness for borrowed money (other than a Lien currently provided for under the Centerbridge Facility, any Permitted Lien (other than clause (d) of such definition) and/or the grant of any cash collateral in respect of letters of credit issued in respect of, or otherwise securing, ordinary course operating liabilities) on any assets of the Debtor or any of its Subsidiaries having a value in excess of $1,000,000 in the aggregate;
(vii) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Debtor or any direct or indirect wholly-owned Subsidiary of the Debtor);
(viii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly-owned Subsidiary to the Debtor or to any other direct or indirect wholly-owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock (other than the Restructuring Support Agreement);
(ix) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(x) incur any indebtedness for borrowed money (which, for the avoidance of doubt, shall not include obligations in respect of cash-collateralized letters of credit issued in respect of, or other grants of cash collateral securing, ordinary course operating liabilities) or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Debtor or any of its Subsidiaries, except for investments indebtedness for borrowed money incurred in securities made the ordinary course of business consistent with past practice (A) not to exceed $2,000,000 in the aggregate, (B) guarantees incurred in compliance with this Section 4.1 by the Debtor of indebtedness of wholly-owned Subsidiaries of the Debtor or (C) indebtedness owed to the Debtor or another wholly-owned Subsidiary of the Debtor;
(xi) except as set forth in the capital expenditures budget set forth in Section 4.1(a)(xi) of the Debtor Disclosure Letter, make or authorize any capital expenditure in excess of $2,000,000 in the aggregate, excluding any capital expenditure required by any Contract set forth on Section 4.1(a)(xi) of the Debtor Disclosure Letter or capital expenditure determined in good faith by the Debtor Board to be required for (A) the protection of, or to avoid injury to, any Person, (B) the care or safety of any patient under the care of any facility operated by the Debtor or any of its Subsidiaries or (C) compliance with Law;
(xii) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement;
(xiii) make any material changes with respect to material accounting policies or procedures, except as required by changes in applicable Law or GAAP;
(xiv) settle any litigation or other Proceeding brought against the Debtor or its Subsidiaries by a Governmental Entity (A) for an amount in excess of $100,000 individually or $1,000,000 in the aggregate for all such Proceedings (other than any resolution of claims processing for government reimbursement in the ordinary course of business, and excluding recoupment actions) or (B) in a manner that would impose any restrictions on its assets, operations or businesses or result in any injunction or equitable relief against the Debtor or any of its Subsidiaries;
(xv) settle any Proceeding other than against or brought by a Governmental Entity, (A) for an amount in excess of $500,000 individually or $8,000,000 in the aggregate for all such Proceedings in any one-calendar-month period (in each case, with respect to Proceedings in the state of Pennsylvania, net of applicable insurance proceeds) or (B) in a manner that would impose any restrictions on its assets, operations or businesses or result in any injunction or equitable relief against the Debtor or any of its Subsidiaries;
(xvi) amend, modify or terminate any Material Contract, including the Centerbridge Facility, in a manner adverse to the Debtor or its Subsidiaries;
(xvii) (A) change in any material respect any material method of accounting of the Debtor or its Subsidiaries for Tax purposes; (B) enter into any agreement with any Governmental Entity (including a “closing agreement” under Code Section 7121) with respect to any material Tax or Tax Returns of the Debtor or its Subsidiaries; (C) surrender a right of the Debtor or its Subsidiaries to a material Tax refund; (D) change an accounting period of the Debtor or its Subsidiaries with respect to any material Tax; (E) file an amended Tax Return; (F) change or revoke any material election with respect to Taxes; (G) make any investment, either by purchase material election with respect to Taxes that is inconsistent with past practice; (H) file any Tax Return that is inconsistent with past practice; or (I) consent to any extension or waiver of shares the limitations period applicable to any material Tax claim or securities, contributions of capital assessment (other than to subsidiariesin the ordinary course of business);
(xviii) transfer, sell, lease, license, mortgage, pledge, divest or otherwise dispose of any material tangible or intangible assets (including Intellectual Property Rights), property transferlicenses, oroperations, rights, product lines, businesses or interests therein of the Debtor or its Subsidiaries, including the capital stock of any of its Subsidiaries, except in connection with services provided in the ordinary course of business and sales or other dispositions of obsolete or worn-out assets and except for sales, leases, licenses, divestitures, cancellations, abandonments, lapses, expirations or other dispositions of assets with a fair market value not in excess of $500,000 in the aggregate, other than pursuant to Contracts in effect prior to the date of this Agreement;
(xix) (A) enter into, adopt, amend in any material respect or terminate any Company Plan (other than entry into any new employment agreement with any individual whose hiring is not restricted by, or who is otherwise hired in accordance with, clause (H) below), (B) increase or accelerate the compensation, bonus, pension, welfare, fringe or other benefits, severance or termination pay of any director, officer or employee of the Debtor or any of its Subsidiaries, (C) grant any new awards, or amend or modify the terms of any outstanding awards, under any Company Plan (other than grants of any new awards to any individual whose hiring is not restricted by, or who is otherwise hired in accordance with, clause (H) below), (D) take any action to accelerate the vesting or lapsing of restrictions or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Plan, (E) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Plan that is required by applicable Law to be funded or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by the terms of any existing Company Plan set forth on Section 2.1(h)(i) of the Debtor Disclosure Letter or GAAP, (F) forgive any loans or issue any loans (other than routine travel advances issued in the ordinary course of business) to any director, officer or employee of the Debtor or any of its Subsidiaries, (G) terminate the employment of any officer of the Debtor or its Subsidiaries other than for “cause”, (H) hire (x) any officer of the Debtor or its Subsidiaries with a title of Vice President or higher or (y) any employee of the Debtor or its Subsidiaries with aggregate annual base salary and target bonus of more than $250,000, except, in the case of the foregoing clauses (x) and (y), to the extent jointly determined by the Chief Restructuring Officer of the Debtor (“CRO”) and the Debtor Board in their reasonable business judgment in good faith necessary in the interests of patient care (any such individual described in the foregoing clauses (x) and (y) and hired to replace any such employee, a “New Hire”), provided that (i) any such officer New Hire (and his or her terms and conditions of employment, including any base and target incentive compensation) hired pursuant to this clause (H) shall be reasonably acceptable to Parent and (ii) the terms and conditions of employment of any New Hire that is not an officer, including base and target incentive compensation, shall be subject to notice and consultation with Parent, or (I) make any incentive payment or payment in respect of severance or any nonqualified deferred compensation entitlement to any current or former director, officer or employee of the Debtor or its Subsidiaries (including making any payments to any rabbi trust or taking any action that would cause the trustee of any rabbi trust to make payments to any current or former director, officer or employee of the Debtor or its Subsidiaries), except, with respect to clause (I) payment of any nondiscretionary incentive payments under existing Company Plans, nondiscretionary severance payments under existing Company Plans, and nondiscretionary payments of nonqualified deferred compensation (other than as set forth on Section 4.1(a)(xix)(I) of the Debtor Disclosure Letter) or as otherwise required by applicable Law; provided that payment in respect of any severance or nonqualified deferred compensation amount in excess of $200,000 shall be subject to prior notice and consultation with Parent and, with respect to clauses (A) through (H) above,
(1) amendments to welfare plans in the ordinary course of business, purchase consistent with past practices that do not materially increase the costs of such welfare plans, (2) with respect to any property hourly employees and salaried facility-level employees of the Debtor or assets of its Subsidiaries, and any other employees of the Debtor or its Subsidiaries whose annual base salary does not exceed $150,000, increases in compensation in the ordinary course materially consistent with the Debtor’s 2018 operating budget or otherwise as reasonably determined by the CRO, in consultation with the QCP Consultants, to be necessary to respond to market demand, (3) with respect to each other employee of the Debtor or its Subsidiaries whose annual base salary exceeds $150,000 (other than any Eligible Employee), increases in compensation in the ordinary course of business consistent with past practice that do not exceed 1.5% of the aggregate annual base salaries of such other employees or 7.5% of the annual base salary for any individual and (4) as required pursuant to existing Company Plans, or entity; as otherwise required by applicable Law;
(vxx) incur become a party to, establish, adopt, amend, commence participation in or terminate any indebtedness collective bargaining agreement or other agreement with a labor union, works council or similar organization;
(xxi) enter into any Contract adversely affecting in any material respect the Debtor’s or any of its Subsidiaries’ ability to use or otherwise exploit any material Intellectual Property Rights;
(xxii) fail to use commercially reasonable efforts to keep in full force the material Insurance Policies under substantially the same levels of coverage as the current policies of the Debtor and its Subsidiaries;
(xxiii) change in any material respect any of the Debtor’s or its Subsidiaries’ material policies or procedures for borrowed money or timing of the collection of accounts receivable (or any other material liability trade receivables), payment of accounts payable (or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual trade payables), billing of its customers, pricing and payment terms, cash collections, cash payments or entityterms with suppliers, in each case, other than changes required by suppliers, vendors and service providers;
(xxiv) dismiss the QCP Consultants other than in accordance with Section 5.1(b);
(xxv) modify or make amend in any loans respect any Contract pursuant to which HCR III or advances;any of its Subsidiaries currently subleases real property to any other Subsidiary of the Debtor; or
(xxvi) agree, authorize or commit to do any of the foregoing.
(b) Parent shall not knowingly take or permit any of its Subsidiaries to take any action that is reasonably likely to prevent or materially impede the consummation of the Transactions.
Appears in 2 contracts
Samples: Plan Sponsor Agreement, Plan Sponsor Agreement (Quality Care Properties, Inc.)
Interim Operations. During the period from (a) From the date of execution of this Agreement and ending on until the Closing or the earlier of the Effective Time and the termination of this Agreement, except with the prior written consent that Seller may incur up to an additional $3,000,000 of the Offerordebt from Perceptive Credit Opportunities Fund, acting reasonably, L.P. and except as otherwise (w) required by law or Law, (x) otherwise expressly permitted or specifically contemplated by this Agreement:
, (ay) Caza covenants set forth in Section 6.1 of the Seller Disclosure Letter or (z) consented to in writing by Buyer (which consent will not be unreasonably withheld, conditional or delayed), Seller will, and agrees that will cause each of its business shall be conducted only Subsidiaries to, conduct the Business in the usual and ordinary course of business consistent with past practicespractice and in material compliance with all material applicable Laws and Permits, and it shall will, and will cause each of its Subsidiaries to, use all its commercially reasonable efforts to preserve intact its present Business organization, maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect effect all of its ongoing Permits, keep available the services of its directors, officers and employees and maintain existing relations and goodwill with Governmental Entities, customers, distributors, lenders, partners, suppliers and others having material business and affairs and keep associations with it or its Subsidiaries. Without limiting the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any generality of the followingforegoing and subject to the exceptions set forth in the foregoing clauses (w), (x), (y) and (z), from the date of this Agreement until the Closing, Seller will not and will not permit its Subsidiaries to:
(i) amend adopt or propose any change in its constating documents; certificate of incorporation or bylaws or other applicable governing instruments;
(ii) issue (merge or consolidate Seller or any of its Subsidiaries with any other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of CazaPerson, or securities convertible into restructure, reorganize or exchangeable completely or exercisable for, partially liquidate or otherwise evidencing a right to acquireenter into any Contracts imposing material changes or restrictions on its assets, securities of Caza; operations or businesses;
(iii) redeemcreate or incur any Lien or other encumbrance on any of the Acquired Assets, purchase other than Permitted Liens and operating Liens incurred in the ordinary course of business consistent with past practice;
(iv) make any changes with respect to accounting policies or otherwise acquire procedures used by it in the preparation of the Financial Statements or revalue or reclassify in any material respect any of the Acquired Assets or the Assumed Liabilities, except as required by changes in applicable GAAP;
(A) waive, release, settle or compromise any pending or threatened Action against Seller or any of its Subsidiaries relating to the Business other than settlements or compromises of any Action (1) in which the amount paid by or on behalf of Seller or any of its Subsidiaries in settlement or compromise does not exceed $500,000 individually or $1,000,000 in the aggregate and (2) that would entail the incurrence of (I) any obligation or liability of Seller or any of its Subsidiaries in excess of such amount, including costs or revenue reductions or (II) any obligation that would impose any material restrictions on the business or operations of Seller or its Subsidiaries or (B) commence, join or appeal in any Action, other than in the ordinary course of business;
(vi) other than in the ordinary course of business and consistent with past practices, (A) make or change any material Tax election, (B) change Seller’s or any of its Subsidiaries’ method of accounting for Tax purposes, (C) file any material amended Tax Return, (D) settle, concede, compromise or abandon any material Tax claim or assessment, (E) surrender any right to a refund of material Taxes or (F) consent to any extension or waiver of the limitation period applicable to any claim or assessment with respect to material Taxes;
(vii) fail to maintain in full force and effect material Insurance Policies or comparable replacement policies covering Seller and its Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practice;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of the Acquired Assets, except in the ordinary course of business consistent with past practice and sales of obsolete assets;
(ix) except as required pursuant to any Employee Plan, consistent with past practice, or as otherwise required by applicable Law, (A) pay, grant or provide any severance or termination payments or benefits to any Continuing Employee; (B) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus, incentive or retention payments to, or make any new equity awards to any Continuing Employee, except for increases in base salary in the ordinary course of business consistent with past practice for employees who are not officers; (C) establish, adopt, amend or terminate any Employee Plan or amend the terms of any outstanding securitiesequity-based awards; (D) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Employee Plan; (E) change in any material respect any actuarial or other assumptions used to calculate funding obligations with respect to any Employee Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretionrequired by GAAP; or (viiF) forgive any loans to any Continuing Employee;
(x) enter into any new line of business; or
(xi) agree, authorize or modify commit to do any contract, agreement, commitment of the foregoing actions or arrangement enter into any letter of intent (binding or non-binding) or similar Contract with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;actions.
(cb) except for transactions disclosed Nothing contained in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries tothis Agreement is intended to give Buyer, directly or indirectly, do any of the following other than as contemplated by this Agreement right to control or pursuant to commitments entered into direct the Business prior to the date Closing, and nothing contained in this Agreement is intended to give Seller, directly or indirectly, the right to control or direct Buyer’s operations. Prior to the Closing, each of Buyer and Seller will exercise, consistent with the terms and conditions of this Agreement Agreement, complete control and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other supervision over its and its Subsidiaries’ respective business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;and operations.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Alliqua BioMedical, Inc.)
Interim Operations. During (a) Except (i) as expressly contemplated, required or permitted by this Agreement, (ii) as required by applicable Law, (iii) as approved in writing by Parent (such approval not to be unreasonably withheld, delayed or conditioned), (iv) as set forth on Section 6.1 of the period Company Disclosure Schedule, or (v) for any necessary or advisable actions taken in good faith to respond to the actual or reasonably anticipated effects of COVID-19 or to comply with COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (v), to the extent permitted under applicable Law and practicable under the circumstances, the Company shall provide prior notice to and consult in good faith with Parent prior to taking such action), from the date of execution of this Agreement and ending on until the earlier to occur of the Effective Time and the termination of this AgreementAgreement pursuant to Article VIII and the Effective Time, except with the prior written consent of the Offeror, acting reasonablyCompany will, and except will cause its Subsidiaries to, use its and their commercially reasonable efforts to (A) conduct their businesses in the ordinary course of business and (B) preserve intact their business organizations and relationships with customers, suppliers, distributors and other Persons with which it has material business dealings; provided that no action by the Company or its Subsidiaries with respect to matters specifically addressed by any provision of Section 6.1(b) shall be deemed a breach of this sentence unless such action would constitute a breach of such provision of Section 6.1(b).
(b) Except (u) as otherwise expressly contemplated, required by law or expressly permitted or specifically contemplated by this Agreement, (v) as required by applicable Law, (w) as approved in writing by Parent (such approval not to be unreasonably withheld, delayed or conditioned), (x) as set forth on Section 6.1 of the Company Disclosure Schedule, or (y) for any necessary or advisable actions taken in good faith to respond to the actual or reasonably anticipated effects of COVID-19 or to comply with COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (y), to the extent permitted under applicable Law and practicable under the circumstances, the Company shall provide prior notice to and consult in good faith with Parent prior to taking such action), from the date of this Agreement until earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will not, and will cause its Subsidiaries not to:
(ai) Caza covenants and agrees that its business shall be conducted only (x) adopt any change in the usual certificate of incorporation or bylaws of the Company or (y) adopt any change in the comparable organizational document of any of the Company’s Subsidiaries;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, or restructure, reorganize, recapitalize or completely or partially liquidate or dissolve or otherwise enter into any agreement or arrangement imposing restrictions on the assets, operations or business of the Company or any of its Subsidiaries;
(iii) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants, restricted shares, restricted share units, performance share units, stock appreciation rights, phantom stock or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, in each case, other than (A) any such transaction among the Company and its Subsidiaries or among the Company’s wholly owned Subsidiaries, (B) any issuance of Shares pursuant to exercise or settlement of Company Equity Awards outstanding as of the date of this Agreement in accordance with their terms, or (C) incurrence of any Permitted Liens;
(iv) make any loans, advances or capital contributions to or investments in any Person (other than (A) to the Company or any of its wholly owned Subsidiaries and (B) operating leases and extensions of credit terms to customers in each case in the ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretopractice);
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement otherwise with respect to any of its capital stock, except for dividends or other distributions paid by any wholly owned Subsidiary of the foregoing except as otherwise permitted Company to the Company or contemplated by this Agreementto any other wholly owned Subsidiary of the Company;
(cvi) except for transactions disclosed in the Disclosure Letterreclassify, Caza will notsplit, and will not permit any of its subsidiaries tocombine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, do any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (except for (A) any such transaction by a wholly owned Subsidiary of the following Company, (B) acquisitions of Shares in satisfaction of withholding obligations in respect of Company Equity Awards to the extent required by such Company Equity Awards, or (C) payment of the exercise price in respect of Company Options, in the case of clauses (B) and (C), outstanding as of the date of this Agreement pursuant to its terms or granted thereafter not in violation of this Agreement);
(vii) create, incur, assume or guarantee any Indebtedness for borrowed money or issue any debt securities or guarantees of the same or any other than Indebtedness, except for (A) borrowings in the ordinary course of business under the Company’s existing revolving credit facilities (including under both the Cash Flow Credit Agreement and ABL Credit Agreement); provided that any such incurrence does not and is not reasonably expected to cause the Payment Condition (as contemplated defined in the ABL Credit Agreement) to fail to be satisfied on, or as of, the Closing Date, (B) guarantees or credit support provided by the Company or any of its Subsidiaries of the obligations of the Company or any of its Subsidiaries in the ordinary course of business to the extent such Indebtedness is in existence on the date of this Agreement or pursuant incurred in compliance with clause (A) of this Section 6.1(b)(vii), and (C) any Indebtedness solely among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries;
(viii) other than in accordance with the Company’s capital expenditure budget made available to commitments Parent, incur or commit to any capital expenditure or expenditures, except capital expenditures of less than $5 million individually or $10 million in the aggregate or capital expenditures as required on an emergency basis or for the safety of individuals or the environment;
(ix) other than in the ordinary course of business consistent with past practice, (A) enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement and disclosed to Agreement; provided, that no Contract of the other party type described in writing Section 5.1(k)(i)(B)(x) or otherwise disclosed to the other party, (C) shall be entered into without the prior written consent of Parent, or (B) amend, modify or waive in any material respect or terminate any Material Contract in a manner adverse to the Company (other than expirations of any such Contract in accordance with its terms);
(x) make any material changes with respect to financial accounting policies or procedures, except as required by Law, proposed Law or by U.S. GAAP or official interpretations with respect thereto or by any Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization);
(xi) settle any Action for an amount in excess of $1 million individually or $5 million in the aggregate other than (A) any settlement or compromise where the amount paid or to be paid by the Company or any of its Subsidiaries is fully covered by insurance coverage or retention amounts maintained by the Company or any of its Subsidiaries and (B) settlements or compromises of any Action for an amount not materially in excess of the amount, if any, reflected or specifically reserved in the balance sheet (or the notes thereto) of the Company included in the Company Reports (with materiality measured relative to the amount so reflected or reserved, if any); provided that, in the case of each of the foregoing clauses (A) and (B), the settlement or compromise of such Action does not (x) impose any non-de minimis restriction on the business or operations of the Company or any of its Subsidiaries (or Parent or any of its Subsidiaries after the Closing) and (y) include any non-de minimis non-monetary or injunctive relief, or the admission of wrongdoing, by the Company or any of its Subsidiaries or any of their respective officers or directors;
(xii) sell, lease, license, encumber (other than Permitted Liens), abandon, permit to lapse, or otherwise dispose of any material assets or property (including any material Intellectual Property Rights) except (A) pursuant to existing contracts or commitments (or refinancings thereof), (B) as may be required by a Governmental Authority to permit or facilitate the consummation of the Merger or any of the other partytransactions contemplated in this Agreement solely to the extent required pursuant to Section 6.5, (C) transactions among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, or (D) in the ordinary course of business and in no event in an amount exceeding $1 million individually or $5 million in the aggregate;
(xiii) except for such consent not to be unreasonably withheldactions required by the terms of Benefit Plans as in effect on the date hereof: (iA) sellincrease the compensation or other benefits payable or provided to the Company’s Employees or other service providers; (B) increase or accelerate or commit to accelerate the funding, pledgepayment or vesting of compensation or benefits provided under any Benefit Plan, dispose (C) grant or announce any cash- or equity or equity-based incentive awards, bonus, change of control, severance or encumber retention award to any Employee or other service provider of the Company or its subsidiaries; (D) establish, adopt, enter into terminate or amend any Labor Agreement or material Benefit Plan (or any plan, program, agreement or arrangement that would be a Benefit Plan if in effect on the date hereof); (E) recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative of any employees of the Company or its Subsidiaries or (F) hire or terminate the employment of any employee of the Company whose annualized base compensation exceed $300,000;
(xiv) acquire any business, assets or capital stock of any Person or division thereof, whether in whole or in part (and whether by purchase of stock, purchase of assets, except merger, consolidation or otherwise), other than the acquisition of assets from vendors or suppliers of the Company or any of its Subsidiaries in the ordinary course of business; ;
(iixv) expend cancel, modify, amend or commit to expend waive or terminate any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, orExisting Credit Documents, except for investments modifications or amendments to any of the Existing Credit Documents that would not (A) impair the ability of Parent to obtain the Debt Financing or any high-yield bonds being issued in securities made lieu of all or a portion of the Debt Financing on the Closing Date, (B) reduce the ability of the Company and its Subsidiaries to incur secured debt for borrowed money in the form of the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing on the Closing Date in any material respect, (C) reduce the ability of the Company and its Subsidiaries to make Restricted Payments (as defined in the applicable Existing Credit Document) on the Closing Date in any material respect, (D) impair the ability of the Merger to be consummated in compliance with any “merger” or “fundamental changes” covenant in the Existing Credit Documents or (E) amend or modify the stated final maturity date of any indebtedness for borrowed money thereunder to be sooner than such maturity date as in effect as of the date hereof, amend or modify the interest rate or undrawn commitment fees payable by the Company or its Subsidiaries under any such agreement in a manner materially adverse to the Company and its Subsidiaries or amend or modify any such agreement to reduce the amount of the total lending commitments thereunder;
(xvi) implement or announce any permanent plant closings or permanent facility shutdown that would implicate the WARN Act;
(xvii) other than in the ordinary course of businessbusiness or consistent with past practice (A) change or revoke any material Tax election; (B) change any annual Tax accounting period or material method of Tax accounting, make (C) file any investmentmaterial amended Tax Return, either (D) settle or compromise any material claim related to Taxes for an amount materially in excess of amounts reserved, (E) enter into any material closing agreement or (F) surrender any right to claim a material Tax refund, offset or other reduction in liability for an amount materially in excess of amounts reserved (it being agreed and understood that, notwithstanding any other provision, neither Section 6.1(b)(xi) nor Section 6.1(b)(xviii) (insofar as it relates to Section 6.1(b)(xi)) shall apply to Tax compliance matters); or
(xviii) agree, authorize or commit to do any of the foregoing.
(c) Nothing contained in this Agreement is intended to give Parent or Merger Sub or any of their Affiliates, directly or indirectly, the right to control or direct the operations of the Company and its Subsidiaries prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
(d) Subject to the terms of this Agreement, including Section 6.5 and Section 6.13, from the date of this Agreement until the Effective Time, none of Parent, Merger Sub or their respective Subsidiaries shall (i) knowingly take any action that would prevent, materially delay or materially impede the consummation of the Equity Financing or the Debt Financing; (ii) acquire or agree to acquire by purchase merging or consolidating with, or by purchasing a material portion of shares the assets of or securitiesequity in, contributions of capital any Person (other than to subsidiariesa “Specified Acquisition”), property transferif the entering into of a definitive agreement relating to or the consummation of such a Specified Acquisition, oras applicable, except would reasonably be expected to (A) prevent, materially delay or materially impair the obtaining of, or adversely affect in any material respect the ordinary course ability of businessParent or its Affiliates to procure, purchase any property authorizations, consents, orders, declarations or assets approvals of any other individual Governmental Authority or entity; (v) incur any indebtedness for borrowed money the expiration or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation termination of any other individual or entityapplicable waiting period necessary to consummate the transactions contemplated by this Agreement, including the Merger, or make (B) materially increase the risk of any loans Governmental Authority entering an order, ruling, judgment or advances;injunction prohibiting the consummation of the transactions contemplated by this Agreement, including the Merger; or (iii) take any action that would reasonably be expected to prevent, materially impair or materially delay the consummation of the Merger or the satisfaction of any of the closing conditions thereto.
Appears in 2 contracts
Samples: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Cornerstone Building Brands, Inc.)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing (such approval not to be unreasonably withheld, except with the prior written consent of the Offeror, acting reasonablydelayed or conditioned), and except as otherwise set forth in Section 6.1 of the Company Disclosure Letter) and except as required by law or applicable Laws, the business of it and 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 reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of, and in furtherance of, the foregoing, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly permitted or specifically contemplated by provided in this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld, delayed or conditioned), (C) as set forth in Section 6.1 of the Company Disclosure Letter or (D) as required by applicable Laws, the Company will not and will not permit its Subsidiaries to:
(ai) Caza covenants and agrees that adopt or propose any change in its certificate of incorporation or by-laws or other applicable governing instruments;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) acquire assets outside of the ordinary course of business shall be conducted only from any other Person with a value or purchase price in excess of $1 million in the usual aggregate, other than acquisitions pursuant to Contracts in effect as of the date of this Agreement;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary and as permitted by Section 6.1(a)(vii)), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than, in each case, (A) the issuance of Shares upon conversion of the Debentures, (B) the issuance of Shares pursuant to Company Awards, including upon exercise thereof and (C) the issuance of Shares in connection with “cashless” or “net settled” exercises of Company Awards);
(v) create or incur any Lien material to the Company or any of its Subsidiaries on any assets of the Company or any of its Subsidiaries (other than the exclusions set forth in clauses (A), (B), (C) and (F) of the definition of Encumbrance);
(vi) make any loans, advances, guarantees (other than guarantees of service granted in the ordinary course of business) or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly-owned Subsidiary of the Company) in excess of $500,000 in the aggregate during any 12-month period;
(vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly-owned Subsidiary to the Company or to any other direct or indirect wholly-owned Subsidiary or regular quarterly dividends not to exceed $0.055 per share payable in cash, declared and paid consistent with prior timing) or enter into any agreement with respect to the voting of its capital stock;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(ix) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for (A) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices, provided that the aggregate amount of outstanding indebtedness for borrowed money will not exceed $60 million at any one time or (B) interest rate swaps on customary commercial terms consistent with past practice and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult in compliance with the Offeror Company’s risk management policies in respect effect on the date of its ongoing business this Agreement and affairs and keep not to exceed $500,000 of notional debt in the Offeror apprised of all material developments relating theretoaggregate;
(bx) Caza shall not, directly or indirectly, do or permit to occur any except as set forth in the capital budgets set forth in Section 6.1(a)(x) of the following:Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $1 million in the aggregate during any 12-month period;
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (viixi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
Contract that (cA) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments would have been a Material Contract had it been entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, (B) is not terminable without the prior consent liability within one year of the other party, date of this Agreement and involves payment or receipt by the Company and its Subsidiaries of more than $5 million over the entire term of such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assetsContract, except in the case of each of (A) and (B), for customer, vendor or technology licensing Contracts entered into in the ordinary course of business; business consistent with past practice that do not contain any of the provisions referred to in Section 5.1(j)(i)(D) and, in the case of vendor and technology licensing Contracts, do not have a term of longer than twelve (ii12) expend months;
(xii) make any material changes with respect to accounting policies or commit procedures, except as required by changes in applicable generally accepted accounting principles;
(xiii) settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $250,000 or any obligation or liability of the Company in excess of such amount;
(xiv) (A) amend or modify any Material Contract in any material respect or in a manner adverse to expend the Company or its Subsidiaries, (B) terminate any amounts Material Contract or (C) cancel, modify or waive any debts or claims held by it or waive any rights in respect each case other than in the ordinary course of capital expensesbusiness and having a value in excess of $250,000;
(xv) make any material Tax election, excluding certain expenditures which may be agreed settle any material Tax claim or change any material method of Tax accounting;
(xvi) (A) grant, extend, amend (except as required in the diligent prosecution of the Intellectual Property), waive or modify any material rights in or to, from time nor sell, assign, lease, license, let lapse, abandon or cancel, or extend or exercise any option to timesell, by the Offeror assign, lease or license, any material Intellectual Property, in writingeach case, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than in the ordinary course of business, make (B) fail to diligently prosecute the Company’s and its Subsidiaries’ patent and trademark applications or (C) fail to exercise a right of renewal or extension under any investment, either by purchase of shares or securities, contributions of capital material inbound license for material Intellectual Property;
(other than to subsidiaries), property xvii) transfer, orsell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or otherwise dispose of any material assets, licenses, operations, rights, product lines, businesses or interests therein of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, except in connection with services provided in the ordinary course of businessbusiness or sales of obsolete assets;
(xviii) hire any employee or individual independent contractor with total expected annual compensation, purchase excluding commissions, in excess of $150,000, other than to fill vacancies arising in the ordinary course of business at compensation levels consistent with past practice;
(xix) except as required pursuant to Benefit Plans or as otherwise required by applicable Law, (i) grant or provide any property severance or assets of termination payments or benefits to any other individual or entity; (v) incur any indebtedness for borrowed money Employee or any director or officer of the Company or any of its Subsidiaries, (ii) increase the compensation, bonus opportunity or pension, welfare, severance or other material liability or obligation or issue benefits of, pay any debt securities or assume, guarantee, endorse or otherwise bonus (other than the 2009 Bonus which may be paid in the ordinary course of business consistent with past practice and in accordance with its terms as an accommodation become responsible for, in effect on the obligation date of any other individual or entitythis Agreement), or make any new equity awards to any Employee or any director or officer of the Company or any of its Subsidiaries, (iii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (v) enter into or establish any (1) employment, severance, change in control, termination, deferred compensation or other similar agreement with any Employee or any director or officer of the Company or any of its Subsidiaries or (2) other agreement, program or policy that would otherwise qualify as a material Benefit Plan had it been in place as of the date of this Agreement (it being understood and agreed that such plan, program or policy that cannot be terminated at any time by the Company or after Closing, Parent, without liability in excess of $500,000 in the aggregate is deemed per se material); (vi) change any discount rate assumptions or materially change any other actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vii) forgive any loans to Employees, directors or advancesofficers of the Company;
(xx) knowingly take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Closing set forth in Article VII not being satisfied; or
(xxi) agree, authorize or commit to do any of the foregoing.
(b) Prior to making any written or material broad-based oral communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to the effect upon employment, compensation or benefit matters that will result as a consequence of the transactions contemplated by this Agreement, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
(c) From the date of this Agreement until the Effective Time, except (A) as otherwise expressly provided in this Agreement, (B) as the Company may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed), (C) as set forth in Section 6.1(c) of the Parent Disclosure Letter or (D) as required by applicable Laws, Parent will not knowingly take or permit any of its Subsidiaries to take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Closing set forth in Article VII not being satisfied.
Appears in 2 contracts
Samples: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (Bowne & Co Inc)
Interim Operations. During The Company covenants and agrees as to itself and its Subsidiaries that, after the period date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing) and except as required by applicable Laws or as provided for in this Agreement, each of the Company and its Subsidiaries shall conduct its business in the ordinary course consistent with past practice and it shall use reasonable efforts to preserve intact its business organization and relationships with third parties and keep available the services of its present officers and employees. Without limiting the generality of the foregoing, from the date of execution of this Agreement and ending on the earlier of until the Effective Time and the termination of Time, except (A) as otherwise expressly permitted by this Agreement, except with the prior written consent (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed) or (C) as set forth in Section 6.1 of the OfferorCompany Disclosure Letter, acting reasonably, the Company will not and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreementwill not permit its Subsidiaries to:
(a) Caza covenants adopt or propose any change in its articles of incorporation or bylaws or other applicable governing instruments;
(b) merge or consolidate the Company or any of its Subsidiaries with any other Person, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(c) other than in accordance with benefits outstanding prior to the date hereof under the Company Stock Plans, issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(d) materially and agrees adversely modify, terminate or renew any Material Contract or any Contract that its business shall would be conducted only a Material Contract if in existence on the date hereof, (i) except in the usual and ordinary course of business, or (ii) if consummation of the transactions contemplated by this Agreement or compliance by the Company with the provisions of this Agreement will conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or to a loss of a material benefit under, or result in the creation of any encumbrance in or upon any of the properties or assets of any Company or Parent or any of its Subsidiaries under such Contract; provided, however, that the foregoing shall not prohibit entering into, modifying or renewing the Contracts in the ordinary course of business to the extent such Contracts can be terminated after any such entering into, modification or renewal at a cost of less than $200,000;
(e) except pursuant to Contracts in effect prior to the date of this Agreement, create or incur any Lien material to the Company or any of its Subsidiaries on any assets of the Company or any of its Subsidiaries having a value in excess of $50,000;
(f) make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly-owned Subsidiary of the Company) in excess of $50,000 in the aggregate;
(g) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or the capital stock of its Subsidiaries (except for dividends paid by any direct or indirect wholly-owned Subsidiary to the Company or to any other direct or indirect wholly-owned Subsidiary) or enter into any agreement with respect to the voting of such capital stock;
(h) other than as required by Section 5.1(r), reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its, or its Subsidiaries, capital stock or securities convertible or exchangeable into or exercisable for any shares of such capital stock, except in accordance with cashless exercise provisions of rights granted prior to the date hereof under the Company Stock Plans;
(i) except under credit facilities set forth in Section 5.1(j)(i)(D) of the Company Disclosure Letter, incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for indebtedness for borrowed money incurred in the ordinary course of business consistent with past practicespractices (i) not to exceed $200,000 in the aggregate, (ii) in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, (iii) guarantees incurred in compliance with this Section 6.1 by the Company of indebtedness of wholly-owned Subsidiaries of the Company or (iv) interest rate swaps on customary commercial terms consistent with past practice and it shall use all commercially reasonable efforts not to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with exceed $250,000 of notional debt in the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoaggregate;
(bj) Caza shall not, directly or indirectly, do or permit to occur any except as set forth in the capital budgets set forth in Section 6.1(j) of the following:Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $200,000 in the aggregate during any 12 month period;
(ik) amend its constating documents; (ii) issue (other than on exercise make any changes with respect to accounting policies or surrender of currently outstanding Caza Options)procedures, grant, sell or pledge or agree except as required to issue, grant, sell or pledge any securities of Cazacomply with, or securities convertible into to comply with changes in, GAAP;
(l) settle any litigation or exchangeable other proceedings before a Governmental Entity for an amount in excess of $200,000 or exercisable forany obligation or liability of the Company in excess of such amount;
(m) make, adopt or change any material Tax election or Tax accounting method, or otherwise evidencing a right fail to acquiretimely (taking into account all applicable extensions) file all Tax Returns required to be filed, securities of Caza; and pay all Taxes required to be paid, on or before the Closing Date;
(iiin) redeemtransfer, purchase sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise acquire dispose of any assets, product lines or businesses of the Company or its Subsidiaries, including capital stock of any of its outstanding securitiesSubsidiaries, except as permitted for sales or rental of inventory in the ordinary course of business, sales of obsolete assets and sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $250,000 in the aggregate, other than pursuant to Contracts in effect prior to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any date of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(co) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or required pursuant to commitments entered into existing written, binding agreements or policies in effect prior to the date of this Agreement and disclosed to the other party set forth in writing or otherwise disclosed to the other party, without the prior consent Section 5.1(h) of the other partyCompany Disclosure Letter, such consent not to be unreasonably withheld: or as otherwise required by applicable Law, (i) sellgrant or provide any severance or termination payments or benefits to any director, pledgeofficer or employee of the Company or any of its Subsidiaries, dispose (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer or employee of the Company or encumber any assetsof its Subsidiaries, except except, in the case of employees who are not officers, in the ordinary course of businessbusiness consistent with past practice , (iii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (iivi) expend forgive any loans to directors, officers or employees of the Company or any of its Subsidiaries;
(p) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied;
(q) take any action that would violate the CIA;
(r) knowingly take or permit any of its Subsidiaries to take any action that is reasonably likely to prevent the consummation of the Merger; or
(s) agree, authorize or commit to expend do any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Compex Technologies Inc), Merger Agreement (Encore Medical Corp)
Interim Operations. During the period (a) The Company covenants and agrees as to itself and its Subsidiaries that, from the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing (such approval not to be unreasonably withheld, except with the prior written consent of the Offerordelayed or conditioned)), acting reasonably, and except as otherwise expressly contemplated or permitted by this Agreement or as required by law a Governmental Entity or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants applicable Laws, the business of it and agrees that its business Subsidiaries shall be conducted only in all material respects in the usual and ordinary course of business consistent with past practicespractice and, to the extent consistent with the foregoing, the Company and it its Subsidiaries shall use all their respective commercially reasonable efforts to (u) preserve their business organizations substantially intact, (v) maintain satisfactory relationships with Governmental Entities, customers and suppliers, and (w) keep available the services of their key employees, key consultants and executive officers, (x) in connection with any and all clinical trial(s) for DX-2930, notify Parent (i) promptly after receipt of any material communication from any Regulatory Authority or inspections of any manufacturing, research and development or clinical trial site and before giving any material submission to a Regulatory Authority and (ii) a reasonable time prior to making any material change to a study protocol, adding new trials, making any material change to a manufacturing plan or process, or making a material change to the development timeline, and (z) preserve and protect the Intellectual Property owned by the Company and its businessSubsidiaries; provided, assets and advantageous business relationshipshowever, that no action taken by the Company or its Subsidiaries with respect to matters specifically addressed by clauses (i)-(xvii) of this Section 6.1(a) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision. Caza shall consult with From the Offeror date of this Agreement until the Effective Time, except (A) as otherwise expressly contemplated or permitted by this Agreement, (B) as Parent may approve in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
writing, (bC) Caza shall not, directly as is required by applicable Law or indirectly, do any Governmental Entity or permit to occur any (D) as set forth in Section 6.1(a) of the followingCompany Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) amend adopt any change in its constating documents; certificate of incorporation or bylaws or other applicable governing instruments, other than, in the case of its Subsidiaries, in a manner that would not materially restrict the operation of its business;
(ii) issue (x) merge or consolidate the Company or any of its Subsidiaries with any other Person or (y) adopt a partial or complete plan of dissolution, liquidation, consolidation, recapitalization, restructuring or other reorganization of the Company or its Subsidiaries;
(iii) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than on the issuance of Shares upon (x) the exercise or surrender vesting, as applicable, of currently Company Options or Company RSUs outstanding Caza Optionsas of the date hereof or in compliance with this Agreement or (y) in connection with the ESPP in compliance with this Agreement), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible or exchangeable into or exchangeable or exercisable forfor any shares of such capital stock, or otherwise evidencing a right any options, warrants or other rights of any kind to acquireacquire any shares of such capital stock or such convertible or exchangeable securities;
(iv) make any loans, securities advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of Caza; the Company) in excess of $1,000,000 in the aggregate;
(iiiv) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(vi) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof capital stock or as permitted in accordance with securities convertible or contemplated by this Agreement; (iv) split, combine exchangeable into or reclassify exercisable for any shares of its securities; capital stock (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than the retention or acquisition of any Shares tendered by current or former employees or directors in order to pay Taxes in connection with the exercise or vesting, as contemplated by this Agreement applicable, of Company Options or pursuant to commitments entered into prior to Company RSUs or in connection with the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except ESPP in the ordinary course of business; business consistent with past practice);
(ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (vvii) incur any indebtedness for borrowed money or any guarantee such indebtedness of another Person (other material liability or obligation than a wholly owned Subsidiary of the Company), or issue or sell any debt securities or assumewarrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, guaranteeother than indebtedness in an aggregate principal amount not to exceed $1,000,000 outstanding at any time;
(x) other than in the ordinary course of business consistent with past practice, endorse acquire any assets or otherwise as an accommodation become responsible for, the obligation of equity interests in any other individual Person for a fair market value in an amount in excess of (1) $1,000,000 in a single transaction or entityseries of related transactions or (2) $5,000,000 in the aggregate and (y) except for expenditures set forth in capital budgets made available to Parent prior to the date of this Agreement, make or authorize any capital expenditure in excess of $1,000,000 in the aggregate during any calendar year;
(ix) (x) make any material changes with respect to financial accounting policies or procedures, except as required by GAAP, or make (y) except as required by applicable Laws or GAAP, revalue in any loans material respect any of its assets, including writing off accounts or advancesnotes receivable, other than in the ordinary course of business and consistent with past practice;
Appears in 2 contracts
Samples: Merger Agreement (Dyax Corp), Merger Agreement (Shire PLC)
Interim Operations. During the period from (a) Unless theglobe otherwise agrees in writing and except as otherwise expressly contemplated by this Agreement, between the date of execution of this Agreement and ending on the earlier Closing, the Company shall, and the Sellers shall cause the Company and the Subsidiary to, (i) conduct the business of the Effective Time Company and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted Subsidiary only in the usual ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain their assets and properties and the current relationships of the Company and the Subsidiary with their respective customers, suppliers, advertisers, distributors, agents, officers and Employees and other Persons with which the Company and the Subsidiary have significant business relationships; (iii) use reasonable best efforts to maintain all of the material assets owned or used by the Company and the Subsidiary in the ordinary course of business consistent with past practicespractice; (iv) continue capital expenditures substantially in accordance with the timing and amounts forecast for capital expenditures as set forth in the schedule of capital expenditures previously provided by the Company to theglobe; (v) maintain insurance in full force and effect substantially comparable in amount, scope and it shall coverage to that in effect on the date of this Agreement; (vi) use all commercially reasonable best efforts to preserve the goodwill and ongoing operations of the business of the Company and the Subsidiary; (vii) maintain the books and preserve its businessrecords of the Company and the Subsidiary in the usual, assets regular and advantageous business relationships. Caza shall consult ordinary manner, on a basis consistent with the Offeror past practice; (viii) perform and comply in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;respects with its Commitments; and (ix) comply in all material respects with applicable Laws.
(b) Caza shall Except as expressly contemplated by this Agreement, between the date of this Agreement and the Closing, the Company will not, directly or indirectlyand the Sellers will cause the Company and the Subsidiary not to, do or permit to occur any of the followingfollowing without the prior written consent of theglobe:
(i) amend its constating documents; create any Encumbrance on any material properties or assets (iiwhether tangible or intangible) issue of the Company or the Subsidiary;
(A) other than on exercise inventory in the ordinary course of business, sell, assign, transfer, lease or surrender otherwise dispose of currently outstanding Caza Options)or agree to sell, assign, transfer, lease or otherwise dispose of any assets of the Company or the Subsidiary or (B) cancel any indebtedness owed to the Company or the Subsidiary;
(iii) merge or consolidate with any Person;
(iv) acquire assets or capital stock of or other equity interests in any Person;
(v) (A) issue, incur, create, assume or otherwise become liable for any Indebtedness, (B) assume, grant, sell guarantee or pledge or agree to issue, grant, sell or pledge any securities of Cazaendorse, or make any other accommodation or arrangement making the Company or the Subsidiary responsible for, any Liabilities of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any Person or (D) repay any amounts owing under any Indebtedness;
(vi) change any method of accounting or accounting practice used by the Company or the Subsidiary;
(vii) (A) enter into or adopt or amend any existing Commitment relating to severance, (B) enter into or adopt or amend any existing severance plan, (C) enter into or adopt or amend any Commitment with any Employee or any Company Employee Plan (including, without limitation, the plans, programs, agreements and arrangements referred to in Section 3.20), (D) grant any options or awards pursuant to equity-based plans, or (E) grant any increases in compensation (except compensation increases associated with promotions and annual reviews in the ordinary course of business, which such compensation increases shall be subject to the prior written approval of theglobe, which approval shall not be unreasonably withheld);
(viii) make any change in the Company's or the Subsidiary's Tax accounting methods, any new election with respect to Taxes or any modification or revocation of any existing election with respect to Taxes or settle or otherwise dispose of any Tax audit, dispute, or other Tax proceeding, in each case without theglobe's express written consent thereto.
(ix) accelerate or delay the purchase of supplies or inventory, the shipment or sale of inventory, the collection of accounts or notes receivable or the payment of accounts or notes payable or accrued liabilities or expenses or otherwise operate the respective businesses of the Company and the Subsidiary, in each case, in a manner that would be inconsistent with past practice;
(x) except as set forth in Schedule 5.2(b)(x), engage in any transaction with any of the Stockholders or any of their Affiliates;
(xi) enter into, modify, terminate, amend, or waive, release or assign any rights or claims with respect to any Commitment other than in the ordinary course of business consistent with past practice;
(xii) allow the lapse of any rights of ownership or use by the Company or the Subsidiary of any Company Intellectual Property right;
(xiii) repurchase, redeem or otherwise acquire or exchange any share of Company Common Stock, issue or sell any additional shares of the capital stock of, or other equity interests in, the Company or the Subsidiary, or issue or sell any securities convertible into or exchangeable for such shares or exercisable forequity interests, or otherwise evidencing a right issue or grant any options, warrants, calls, subscription rights or other rights of any kind to acquireacquire additional shares of such capital stock, securities such other equity interests or such securities;
(xiv) amend the Company's Certificate of Caza; Incorporation, as amended, or Amended and Restated Bylaws or the Subsidiary's Memorandum and Articles of Association or equivalent organizational documents of either the Company or the Subsidiary;
(iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vixv) declare, set aside aside, make or pay any dividend or other distribution or payment (whether in cash shares cash, stock or propertyproperty or any combination thereof);
(xvi) take any action that is reasonably likely to result in the representations and warranties set forth in Article III becoming false or inaccurate in any material respect of its outstanding securities without the consent as of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretionClosing Date; or or
(viixvii) enter into or modify any contract, agreement, commitment or arrangement with respect agree to take any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant actions referred to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c5.2(b); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;.
Appears in 2 contracts
Samples: Merger Agreement (Theglobe Com Inc), Merger Agreement (Theglobe Com Inc)
Interim Operations. During (a) Except as otherwise (i) expressly permitted or required by this Agreement, (ii) required by applicable Law, (iii) expressly approved in writing by Parent (such approval not to be unreasonably withheld, delayed or conditioned) or (iv) expressly set forth in Section 6.1(a) of the period Company Disclosure Schedule, from the date of execution this Agreement until the Effective Time, the Company will, and will cause its Subsidiaries to conduct their businesses in the ordinary course of business consistent with past practice and use its and their reasonable best efforts to maintain and preserve intact the material aspects of their business organizations, to maintain their business relationships and goodwill with suppliers, contractors, distributors, customers, partners, employees, licensors, licensees and others having material business relationships with it, to retain the services of the Company’s and its Subsidiaries’ employees and business associates and agents and to comply in all material respects with all applicable Laws and the requirements of all Material Contracts.
(b) Without limiting the generality of the foregoing, except as otherwise expressly (x) permitted or required by this Agreement, (y) approved in writing by Parent (such approval not to be unreasonably withheld, delayed or conditioned) or (z) set forth in Section 6.1(b) of the Company Disclosure Schedule, from the date of this Agreement until the Effective Time, the Company will not, and will cause its Subsidiaries not to:
(i) (x) adopt or propose any change in the Charter or bylaws of the Company or (y) adopt any change in the comparable organizational document of any Subsidiary of the Company;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transaction between or among any of its Subsidiaries that would not impose, individually or in the aggregate, any changes or restrictions on its assets, operations or business or on the assets, operations and business of the Company and its Subsidiaries taken as a whole that would be adverse to Parent or any of its Affiliates, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreement or arrangement imposing, individually or in the aggregate, any changes or restrictions on the assets, operations or business or on the assets, operations and business of the Company or any of its Subsidiaries that would be adverse to Parent or any of its Affiliates;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material assets, securities, properties, rights, interests or businesses (other than purchases of supplies, equipment, managed services, cloud services, software or inventory in the ordinary course of business consistent with past practice);
(iv) sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire, transfer or dispose of, or create or incur any Lien (other than Permitted Liens) on, any of the Company’s or its Subsidiaries’ material assets (including Intellectual Property Rights), securities, properties, rights, interests or businesses (including pursuant to any sale-leaseback transaction or asset securitization transaction but excluding any sale, disposition, lease or license of inventory or product in the ordinary course of business consistent with past practice);
(v) purchase, redeem or otherwise acquire, or authorize or agree to purchase, redeem or acquire, any Group Securities (other than Group Securities of wholly owned Subsidiaries of the Company and other than the acceptance of Shares as payment for the exercise price of Company Options (including pursuant to a net exercise feature) or for withholding taxes incurred in connection with the exercise of Company Options or the vesting or net settlement of other Group Securities outstanding under the Stock Plans (and dividend equivalents thereon, if any), in each case to the extent such Group Securities for withholding taxes that are outstanding as of the date of this Agreement and ending in accordance with their applicable terms on the earlier of the Effective Time and the termination date of this Agreement, );
(vi) except (A) for Shares issuable upon the exercise or conversion of Company Options or Company RSUs outstanding on the date hereof; or (B) with respect to Parent’s and Merger Sub’s participation in the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically transactions contemplated by this Agreement:, issue, sell, grant, dispose of, pledge, deliver, transfer or otherwise encumber or authorize, propose or agree to the issuance, sale, grant, disposition, pledge, delivery, transfer or encumbrance by the Company or any of its Subsidiaries of, any Group Securities;
(avii) Caza covenants and agrees that make any loans, advances or capital contributions to, or investments in, any Person (other than the Company or any of its business shall be conducted only wholly-owned Subsidiaries), whether or not in the usual ordinary course of business consistent with past practice, in an amount greater than $500,000 individually or $2,000,000 in the aggregate;
(viii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any Group Securities or consent to any dividend or distribution of each Joint Venture Entity (except for dividends or other distributions paid by any wholly-owned Subsidiary of the Company to the Company or to any other wholly-owned Subsidiary of the Company or pro rata dividends or distributions by Joint Venture Entities) or enter into any agreement with respect to the voting of Group Securities or Joint Venture Entity Securities;
(ix) reclassify, split, combine or subdivide any of the capital stock of the Company;
(x) create, incur or assume any material indebtedness for borrowed money (other than trade payables (including, for avoidance of doubt, indebtedness associated with the purchase of products or services of the Company) and company credit cards, in each case in the ordinary course of business consistent with past practice) or guarantee, endorse or otherwise become responsible (whether directly, contingently or otherwise) for any such indebtedness;
(xi) other than facilities or technology capital expenditures in the ordinary course of business consistent with past practice, make or commit to any capital expenditure or expenditures in an amount greater than $500,000 individually or $2,000,000 in the aggregate;
(xii) enter into any agreement, arrangement or commitment that materially limits or otherwise restricts the Company or its Subsidiaries from engaging or competing in any line of business or in any geographic area or otherwise enter into any agreements, arrangements or commitments imposing material changes or restrictions on its assets, operations or business, except in the ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(bxiii) Caza (A) enter into any Contract that, if in effect on the date hereof, would have been a Material Contract (other than in the ordinary course of business consistent with past practices), (B) terminate or amend or modify in any material respect any Material Contract or any Contract that, if in effect on the date hereof, would have been a Material Contract (other than terminations or amendments in the ordinary course of business consistent with past practice), (C) waive in any material respect any term of, or waive any material default under, or release, settle or compromise any material claim against the Company or any of its Subsidiaries or material liability or obligation owing to the Company or any of its Subsidiaries under, any Material Contract or any Contract that, if in effect on the date hereof, would have been a Material Contract or (D) enter into any Contract that contains a change of control provision or any similar provision that would require a payment to the other party or parties thereto as a result of the consummation of the Merger or the other transactions contemplated by this Agreement (including in combination with any other event or circumstance); it being agreed that the entry into, termination, amendment or modification of any Contract that (x) is or would be a Material Contract of the type described in clauses (A), (B), (C), (D), (F) (with respect to entering into a new Real Property Lease or terminating, amending or modifying a Real Property Lease in effect as of the date of this Agreement), (J), (K), (M) or (N) of Section 5.1(j)(i), or (y) will involve payments to or from the Company and/or any of its Subsidiaries in excess of $15,000,000 in any one-year period, in each case, will not be considered to be in the ordinary course of business consistent with past practices;
(xiv) materially change the Company’s methods of accounting, except as required by concurrent changes in GAAP or in Regulation S-X of the Exchange Act;
(xv) agree to or otherwise settle, compromise or otherwise resolve in whole or in part any Action for an amount in excess of $500,000 individually or $2,000,000 in the aggregate; provided, however, neither the Company nor any of its Subsidiaries shall notsettle any Action (regardless of the amount involved) if any such settlement would impose any material obligation or restriction on the Company or its Subsidiaries from time to time or on the Company’s or its Subsidiaries’ ability to own or operate any of its assets, directly licenses, operations, rights, product lines, businesses or indirectlyinterests therein or require any material changes to the business of the Company or its Subsidiaries from time to time;
(xvi) except as may be required by applicable Law, do (A) make a new material Tax election or permit change any material Tax election, (B) change any entity classification of any Subsidiary, (C) create a permanent establishment in any country other than the country in which the Company or any of its Subsidiaries is organized, (D) file any amended income Tax Return or other material amended Tax Return, (E) adopt or change any annual Tax accounting period or material accounting method for Taxes, (F) settle or compromise any material Tax claim, (G) surrender any material claim for a refund of Taxes, (H) enter into any closing agreement relating to occur Taxes or (I) file any income Tax Return or other material Tax Return that is inconsistent with past practice;
(xvii) take or fail to take any action that would reasonably be expected to result in any of the following:
conditions set forth in Article VII (iConditions) amend its constating documents; (ii) issue (other than on exercise not to be satisfied or surrender prevent or materially impede the consummation of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securitiesthe transactions contemplated by this Agreement, except as permitted pursuant to under Section 6.2;
(xviii) announce, implement or effect any material reduction in labor force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of the Company (including any “plant closing” or “mass layoff” as those terms thereof are defined in the WARN Act or as permitted any similar action under a similar Law), other than routine employee terminations in accordance the ordinary course of business consistent with or contemplated by this Agreement; past practice;
(iv) split, combine or reclassify any of its securities; (vxix) adopt a plan of liquidation complete or resolutions providing for the partial liquidation, dissolution, merger, consolidation consolidation, restructuring, recapitalization or other reorganization of Caza; the Company (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without than the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this AgreementMerger);
(cxx) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated required by this Agreement applicable Law or pursuant to commitments entered into prior to the terms of any Benefit Plan as in effect as of the date of this Agreement and disclosed set forth in the Company Disclosure Schedule, (A) terminate, adopt, establish, enter into, amend or renew (or communicate any intention to take such action) any Benefit Plan, (B) increase in any manner the other party in writing compensation, benefits, severance or otherwise disclosed to the other party, without the prior consent termination pay of any of the current or former directors, officers, employees or consultants who are natural persons of the Company or its Subsidiaries, (C) pay any bonus or incentive compensation under any Benefit Plan, other partythan payments based on actual performance for completed performance periods, such consent not to be unreasonably withheld: (iD) sell, pledge, dispose accelerate the vesting of or encumber lapsing of restrictions, or amend the vesting requirements, with respect to any assetsequity-based compensation or other long-term incentive compensation under any Benefit Plan, except (E) grant any new awards, or amend or modify the terms of any outstanding awards, under any Benefit Plan, (F) take any action to accelerate the payment, or to fund or secure the payment, of any amounts under any Benefit Plan, (G) forgive any loans or issue any loans (other than routine travel advances issued in the ordinary course of business) to any Company employee, (H) hire any employee or consultant who is a natural person with a target total annual cash compensation (e.g., base pay or base rate and short-term cash incentive target amounts) opportunity in excess of $200,000, (I) enter into any collective bargaining agreement or other agreement with a labor union, works council or similar organization or (J) terminate without cause the employment of any executive officer of the Company; or
(iixxi) expend agree, authorize or commit to expend do any amounts of the foregoing.
(c) Prior to making any broad-based written or oral communications to the officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, the Company shall provide Parent with a copy of the intended communication (or, in respect the case of capital expensesany oral communications, excluding certain expenditures which may be agreed tocopies of scripts, from talking points or other similar materials), upon providing Parent with the communication, Parent shall have a reasonable period of time to timereview and comment on the communication, by and Parent and the Offeror Company shall cooperate in writingproviding any such mutually agreeable communication.
(d) Nothing contained in this Agreement is intended to give Parent or Merger Sub, which for greater certaintydirectly or indirectly, shall not be subject the right to control or direct the operations of the Company and its Subsidiaries prior to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in Effective Time. Prior to the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible forEffective Time, the obligation Company shall exercise, consistent with the terms and conditions of any other individual or entitythis Agreement, or make any loans or advances;complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 2 contracts
Samples: Merger Agreement (Pcm, Inc.), Merger Agreement (Insight Enterprises Inc)
Interim Operations. During Except as may be (i) expressly provided for in this Agreement, (ii) expressly provided for in the period from Merger Agreement (including the Schedules), (iii) required by applicable Law or (iv) consented to in writing by Buyer in advance (which consent will not be unreasonably withheld, conditioned or delayed), the Sellers shall cause the Companies and the Company Subsidiaries to, and Westway Canada shall (with respect to the Canadian Feed Business), carry on their respective business in the ordinary course consistent with past practice, and, to the extent consistent therewith, the Sellers shall cause the Companies and the Company Subsidiaries to and Westway Canada shall (with respect to the Canadian Feed Business) use reasonable best efforts to preserve substantially intact their respective business organization, to keep available the services of their respective current officers and employees, to preserve their respective present relationships with customers, suppliers, distributors, licensors, licensees and other Persons having business relationships with them. The Parties agree that each of Xxxx Xxxxxxx and Xxx Xxxxxxx shall be authorized to provide consent on behalf of Buyer for purposes of this Section 5.1. Without limiting the generality of the foregoing, between the date of execution of this Agreement and ending on the earlier Closing, except as otherwise expressly provided for in this Agreement or as set forth in Schedule 5.1 or as required by applicable Law, the Sellers shall not permit any of the Effective Time Companies or the Company Subsidiaries to, and Westway Canada shall not (with respect to the termination of this AgreementCanadian Feed Business), except with without the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law Buyer (which consent will not be unreasonably withheld conditioned or expressly permitted or specifically contemplated by this Agreement:delayed):
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts amend or propose to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoamend their respective governing documents;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options)split, grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) splitsubdivide, combine or reclassify any securities of its securities; any of the Companies, the Company Subsidiaries or Westway Canada (vii) adopt except as pursuant to this Agreement, repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any securities of any of the Companies, the Company Subsidiaries or Westway Canada or (iii) except (A) for transfers which would cause either a plan of liquidation net cash inflow or resolutions providing outflow between the Feed Intercompany Cash Sweep Account and the Parent Swingline Account, (B) for the liquidationUK Reorganization, dissolutionand (C) in connection with the direct or indirect repatriation (in any form or method approved by the relevant entity) of cash or cash equivalents to Netherlands Holdings or its direct or indirect owners, mergeror (D) as otherwise consistent with past practice, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares cash, stock, property or propertyotherwise) in respect of its outstanding securities without the consent of the Offerorof, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement Contract with respect to the voting or registration of, any shares of the foregoing except as otherwise permitted Companies’, the Company Subsidiaries’ or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of Westway Canada’s capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital stock (other than to subsidiariesdividends from its direct or indirect wholly-owned Subsidiary), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Westway Group, Inc.)
Interim Operations. During the period from (a) From the date of execution of this Agreement and ending on the earlier of until the Effective Time and or the earlier termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as (w) otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
, (ax) Caza covenants required by applicable Laws (y) set forth in Section 6.1 of the Company Disclosure Letter or (z) consented to in writing by Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company will, and agrees that will cause each of its Subsidiaries to, conduct its business shall be conducted only in the usual and ordinary course of business consistent with past practicespractice and in compliance with all applicable Laws, and it shall will, and will cause each of its Subsidiaries to, use all commercially its reasonable best efforts to preserve intact its present business organization, maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect effect all of its ongoing Permits, keep available the services of its directors, officers and employees and maintain existing relations and goodwill with Governmental Entities, customers, distributors, lenders, partners, suppliers and others having material business associations with it or its Subsidiaries. Without limiting the generality of the foregoing and affairs subject to the exceptions set forth in the foregoing clauses (w), (x), (y) and keep (z), from the Offeror apprised date of all material developments relating thereto;
(b) Caza shall notthis Agreement until the Effective Time, directly or indirectly, the Company will not and will not permit its Subsidiaries to do or permit to occur any of the following:
(i) amend adopt or propose any change in its constating documents; articles of incorporation or bylaws or such other similar applicable governing instruments;
(ii) issue merge or consolidate the Company or any of its Subsidiaries with any other Person, or restructure, reorganize or completely or partially liquidate;
(iii) other than capital expenditures covered by clause (x) below, acquire assets (whether by merger, tender offer, consolidation, purchase of property or otherwise) outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $10,000,000 in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries including Shares and/or Class B Shares (other than on exercise or surrender of currently outstanding Caza Options)the issuance, sale, pledge, disposition, grant, sell transfer, lease, license, guaranty or pledge encumbrance of shares by a wholly owned Subsidiary of the Company to the Company or agree to issue, grant, sell or pledge any securities of Caza, another wholly owned Subsidiary) or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, except for the issuance of Shares pursuant to awards or exercisable forrights outstanding as of the date of this Agreement in accordance with the terms of the Stock Plans, or as may be granted in accordance with, or otherwise evidencing a right to acquirein compliance with, securities the terms of Caza; this Agreement;
(iiiv) redeem, purchase create or otherwise acquire incur any material Lien on any of the assets including any material Owned Intellectual Property, other than Permitted Liens;
(vi) make any loans, advances or capital contributions to, guarantees of or investments in any Person (other than (1) between or among the Company and/or one or more direct or indirect wholly owned Subsidiary of the Company or (2) advances made in the ordinary course of business consistent with past practice to employees of the Company and its outstanding securities, except as permitted pursuant to the terms thereof Subsidiaries for reimbursement of routine travel or as permitted business expenses in accordance with or contemplated by the terms of the applicable policy in effect on the date of this Agreement; );
(iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vivii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment otherwise, with respect to any of its capital stock (whether except for dividends paid by any wholly owned Subsidiary to the Company or to any other wholly owned Subsidiary or any dividends required to be paid under any credit facility filed as an exhibit in the Company Reports filed with the SEC since June 28, 2014); provided, that the Company may make, declare and pay one regular quarterly cash dividend in each quarter of the fiscal year with a record date consistent with the record date for each quarterly period for the fiscal year ended June 27, 2015; provided, further, that such dividend per share shall not exceed (A) $0.39 per quarter for dividends with respect to fiscal year 2017 and (B) $0.41 per quarter for dividends with respect to fiscal year 2018;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any capital stock or securities convertible or exchangeable into or exercisable for any shares of capital stock of the Company or propertyany of its Subsidiaries;
(ix) incur any Indebtedness, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for Indebtedness (A) that is to be paid off in full and without penalty at or prior to the Effective Time and (i) incurred in the ordinary course of business consistent with past practice pursuant to existing Contracts, or (ii) incurred to replace, renew, extend, refinance or refund any existing Indebtedness of the Company or any of its Subsidiaries, (B) incurred as intercompany Indebtedness solely among the Company and its direct or indirect wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries or (C) Indebtedness not to exceed $10,000,000 in aggregate principal amount outstanding at any time incurred by the Company or any of its Subsidiaries that is to be paid off in full and without penalty at or prior to the Effective Time other than in accordance with clauses (A) through (B);
(x) make or authorize any capital expenditures or series of related capital expenditures that are not in the ordinary course of business consistent with past practice;
(xi) (A) except as required by Law (including the legal obligation under the National Labor Relations Act or similar national and provincial Canadian laws to bargain in good faith to reach a labor contract with a labor organization that has been certified as the bargaining agent for the designated employee group) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement or (B) amend or modify in a material manner or terminate any Material Contract, or cancel, modify in a material manner or waive any debts, rights, or claims thereunder (other than as permitted pursuant to Section 6.1(a)(ix));
(xii) make any changes with respect to accounting policies or procedures, except as required by changes in applicable GAAP;
(xiii) (A) waive, release, settle or compromise any pending Action against the Company or any of its Subsidiaries other than settlements or compromises of any Action (1) in respect which the amount paid by or on behalf of the Company or any of its outstanding securities without Subsidiaries in settlement or compromise does not exceed $1,000,000 individually or $3,000,000 in the consent aggregate and (2) that would not impose any material restrictions on the business or operations of the OfferorCompany or its Subsidiaries or (B) commence, join or appeal in any Action, other than in the ordinary course of business;
(xiv) (A) make or change any material Tax election, (B) change the Company’s or any of its Subsidiaries’ method of accounting for Tax purposes, (C) file any material amended Tax Return, (D) settle, concede, compromise or abandon any material Tax claim or assessment, (E) surrender any right to a refund of material Taxes or (F) consent to any extension or waiver of the limitation period applicable to any claim or assessment with respect to material Taxes;
(xv) fail to use commercially reasonable efforts to maintain in full force and effect the Insurance Policies covering the Company and its Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practice;
(xvi) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any material assets (including any material Owned Intellectual Property), licenses, operations, product lines, businesses or interests of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, in each case except (1) in the ordinary course of business consistent with past practice, (2) for sales of obsolete assets or (3) for transactions involving a de minimis amount of assets in the aggregate;
(xvii) except as required pursuant to existing written Benefit Plans in effect prior to the date of this Agreement or as otherwise required by applicable Law and except as contemplated by this Agreement, (A) pay, grant or provide any severance or termination payments or benefits to any director, officer, contractor or employee of the Company or any of its Subsidiaries; (B) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus, incentive or retention payments to, or make any equity awards to any director, officer, contractor or employee of the Company or any of its Subsidiaries, except for increases in base salary in the ordinary course of business consistent with past practice for employees who are not officers; (C) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards; (D) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan; (E) change in any material respect any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which consent contributions to such plans are made or the basis on which such contributions are determined, except as may be withheld in required by GAAP; (F) forgive any loans to directors, officers or employees of the Offeror’s sole and absolute discretionCompany or any of its Subsidiaries; or (viiG) hire or terminate without cause any executive officer or any employee with a target annual compensation opportunity in excess of $200,000, other than any such hire that is a replacement hire to fill a position in existence as of the date of this Agreement;
(xviii) other than in compliance with Section 6.2, take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied;
(xix) communicate with the directors, officers, employees or consultants of the Company regarding the compensation, benefits or other treatment they will receive in connection with the Merger or after the Closing, other than communications that are not inconsistent with (a) the terms of this Agreement or (b) previous public announcements or communications; or
(xx) agree, authorize or commit to do any of the foregoing actions or enter into or modify any contract, agreement, commitment or arrangement Contracts with respect to any of the foregoing except as otherwise permitted actions.
(b) Nothing contained in this Agreement is intended to give Parent or contemplated by Merger Sub the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, each of Parent and the Company will exercise, consistent with the terms and conditions of this Agreement;, complete control and supervision over their respective operations.
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, From and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to after the date of this Agreement and disclosed to Agreement, the Company will notify Parent promptly of any notice or other party in writing communication received by the Company or otherwise disclosed to any of its Subsidiaries from the other party, without the prior consent PBGC regarding any defined benefit pension plan of the Company or any of its Subsidiaries other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except than routine notices in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by . In the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets event of any other individual such notice or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible forcommunication, the obligation Company will consult with Parent with respect to any communications with the PBGC or its representatives and will act in accordance with Section 6.1(c) of any other individual or entity, or make any loans or advances;the Company Disclosure Letter.
Appears in 2 contracts
Samples: Merger Agreement (Cintas Corp), Merger Agreement (G&k Services Inc)
Interim Operations. During (a) Except as otherwise expressly (A) required by this Agreement, (B) required by applicable Law, (C) approved in writing by Parent or (D) set forth on Section 6.1(a) of the period from Company Disclosure Letter, the Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement and ending on the earlier of prior to the Effective Time (unless Parent shall otherwise approve in writing (such approval not to be unreasonably withheld, conditioned or delayed)), the business of it and its Subsidiaries shall be conducted in the termination ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, SROs, customers, clearing brokers, suppliers, licensors, licensees, distributors, creditors, lessors, employees, independent contractors and business associates and keep available the services of its and its Subsidiaries’ present officers, employees, independent contractors and agents, except as required by applicable Laws. Without limiting the generality of and in furtherance of the foregoing, after the date of this Agreement and prior to the Effective Time, except as otherwise expressly (A) required by this Agreement, (B) required by applicable Law, (C) approved in writing (such approval not to be unreasonably withheld, conditioned or delayed) by Parent or (D) set forth on Section 6.1(a) of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) adopt or propose any change in its articles of incorporation or bylaws or comparable governing documents;
(ii) merge or consolidate itself or any of its Subsidiaries with any other Person, except for any such transactions among its wholly owned Subsidiaries, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) acquire assets outside of the ordinary course of business from any other Person in any transaction or series of related transactions, other than (A) acquisitions pursuant to and in accordance with the terms of Contracts in effect as of the date of this Agreement, true, correct and complete copies of which have been provided or otherwise made available to Parent prior to the date of this Agreement or (B) underwritten transactions and/or transactions effected pursuant to Rule 144A of the Securities Act which are not in excess of $20,000,000 in the aggregate;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or Encumbrance of, or otherwise enter into any Contract or understanding with respect to the voting of, any shares of its capital stock or that of any of its Subsidiaries (other than (A) the Company Voting Agreements or (B) the issuance of shares (i) by its wholly owned Subsidiary to it or another of its wholly owned Subsidiaries, (ii) in respect of Company Equity Awards outstanding as of the date of this Agreement or permitted to be granted under this Section 6.1(a) following the date of this Agreement, in each case, in accordance with their terms and, as applicable, the Stock Plan as in effect on the date of this Agreement, or (iii) pursuant to the Investor Option), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) create or incur any Encumbrance on any of its assets or any of its Subsidiaries assets except in the ordinary course of business;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than to or from the Company and any of its wholly owned Subsidiaries) except in connection with securities lending in the ordinary course of business or capital markets transactions in the ordinary course of business and not in excess of $2,500,000;
(vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for (i) dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary or (ii) the Pre-Closing Dividend);
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(ix) incur any Indebtedness (including the issuance of any debt securities, warrants or other rights to acquire any debt security) except in connection with securities lending in the ordinary course of business or capital markets transactions in the ordinary course of business and not in excess of $2,500,000;
(x) except to the extent specifically provided by, and consistent with the prior written consent line items set forth in, the Company’s capital budget set forth in Section 6.1(a)(x) of the OfferorCompany Disclosure Letter, acting reasonablymake or authorize any payment of, and except as otherwise required by law or expressly permitted accrual or specifically contemplated by this Agreement:commitment for, capital expenditures;
(axi) Caza covenants and agrees that its business shall be conducted only other than in the usual and ordinary course of business consistent with past practicespractice, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments Contract that would have been a Company Material Contract had it been entered into prior to the date of this Agreement and disclosed to the other party in writing or amend, modify, supplement, waive, terminate, assign, convey, encumber or otherwise disclosed transfer, in whole or in part, rights or interest pursuant to or in any Company Material Contract, other than expirations of any such Contract in the other partyordinary course of business in accordance with the terms of such Contract, without the prior consent of the other partyor cancel, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of modify or encumber waive any assets, debts or claims held by it or waive any rights except in the ordinary course of business; provided that for the purpose of this Section 6.1(a)(xi) the thresholds in Section 4.16(a)(vi) shall be deemed to refer to $200,000 and $400,000, respectively;
(iixii) expend settle any action, suit, claim, hearing, arbitration, investigation or commit other proceedings (except in the ordinary course of business or for money damages not to expend exceed $500,000 in the aggregate) or on a basis that would result in the imposition of any amounts writ, judgment, decree, settlement, award, injunction or similar order of any Governmental Entity or SRO that would restrict the future activity or conduct of the Company or any of its Subsidiaries or a finding or admission of a violation of Law or violation of the rights of any Person or that is brought by any current, former or purported holders of any capital stock or debt securities of the Company or any of its Subsidiaries relating to the Merger or the other transactions contemplated by this Agreement;
(xiii) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;
(xiv) take any action that would result in a material diminution for the net capital of a Broker-Dealer Subsidiary not in the ordinary course of business consistent with past practice or a failure to comply with the net capital requirements of the SEC, FINRA and any SRO applicable to any Broker-Dealer Subsidiary, except, for the avoidance of doubt, the payment of the Pre-Closing Dividend;
(xv) fail to duly and timely file all material reports and other material documents required to be filed with FINRA, the SEC or any other Governmental Entity or SRO, subject to extensions permitted by Law or applicable rules and regulations;
(xvi) fail to maintain in full force and effect all Insurance Policies covering the Company and its Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practice;
(xvii) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any material Tax claim, audit, assessment or dispute, surrender any right to claim a refund of a material amount of Taxes, take any action which is reasonably likely to result in a material increase in the Tax liability of the Company or its Subsidiaries, or, in respect of any taxable period (or portion thereof) ending after the Closing Date, the Tax liability of Parent or its Affiliates;
(xviii) transfer, sell, lease, assign, divest, cancel or otherwise dispose of, or permit or suffer to exist the creation of any Encumbrance upon, any assets, product lines or businesses material to it or any of its Subsidiaries, including capital expensesstock of any of its Subsidiaries, excluding certain expenditures which may be agreed toexcept in connection with services provided in the ordinary course of business and sales of obsolete assets, from time other than pursuant to time, by the Offeror Company Material Contracts as in writing, which for greater certainty, shall not be subject effect prior to the covenants set forth in date of this Section 7.1(c); Agreement true, correct and complete copies of which have been made available to Parent;
(iiixix) reorganizesell, amalgamate, merge assign or otherwise continue with transfer any other Intellectual Property Rights to any Person, corporation(B) grant any license, partnership covenant not to xxx, release, waiver or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) right under any corporation, partnership or other business organization or division thereof, orIntellectual Property Rights to any Person, except for investments non-exclusive licenses granted in securities made the ordinary course of business consistent with past practice, or (C) cancel, abandon or allow to lapse or expire any material Intellectual Property Rights;
(xx) except as required by applicable Law or pursuant to the terms of any Plan in effect as of the date hereof, (A) increase the cash compensation or benefits payable or to become payable to its directors, officers, employees or individual independent contractors, except, for employees who are not executive officers for purposes of Section 16 of the Exchange Act, increases in annual salary or wage rate in the ordinary course of business consistent with past practice that do not exceed 6% individually or 3% in the aggregate, (B) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary, (C) take any action to amend or waive any vesting criteria or accelerate vesting, exercisability or funding under any Plan or award granted thereunder, (D) become a party to, establish, adopt, materially amend, commence participation in or terminate any Plan or any arrangement that would have been a Plan had it been entered into prior to this Agreement, (E) grant any new awards, or amend or modify the terms of any outstanding awards, under any Plan, (F) forgive any loans or issue any loans (other than routine travel advances issued in the ordinary course of business) to any Company Employee, make (G) hire any investment, either by purchase employee or engage any independent contractor (who is a natural person) with an annual salary or wage rate or consulting fees in excess of shares $200,000 individually or securities, contributions $1,000,000 in the aggregate or (H) terminate the employment of capital (any executive officer other than for cause;
(xxi) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, works council or similar organization;
(xxii) change in any material respect the cash management practices, policies or procedures of the Company or any of its Subsidiaries with respect to subsidiaries)collection of accounts receivable, property transferestablishment of reserves for uncollectible accounts receivable, oraccrual of accounts receivable, except payment of accounts payable, purchases, prepayment of expenses or deferral of revenue, from the Company’s and its Subsidiaries’ practices, policies and procedures with respect thereto in the ordinary course of businessbusiness consistent with past practice, purchase including (i) taking (or omitting to take) any action that would have the effect of accelerating revenues, accelerating cash receipts or accelerating the collection of accounts receivable to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods, or (ii) taking (or omitting to take) any action that would have the effect of delaying or postponing the payment of any accounts payable to post-Closing periods that would otherwise be expected to be paid in pre-Closing periods;
(xxiii) take any action or omit to take any action that is intended to or would reasonably be likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied; or
(xxiv) agree, authorize or commit to do any of the foregoing.
(b) Parent covenants and agrees as to itself and its Subsidiaries that, after the date of this Agreement and prior to the Effective Time (unless the Company shall otherwise approve in writing (such approval not to be unreasonably withheld, conditioned or delayed)), except as otherwise expressly (A) required by this Agreement, (B) required by applicable Law or (C) set forth on Section 6.1(b) of the Parent Disclosure Letter, Parent will not, and will not permit its Subsidiaries to:
(i) adopt or propose any change in Parent’s certificate of incorporation or bylaws in any manner that would prohibit the Merger or the consummation of the other transactions contemplated by this Agreement or would reasonably be expected to have a material and adverse impact on the value of the Parent Common Stock that disproportionately affects the holders of Company Common Stock;
(ii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or assets otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to it or to any other direct or indirect wholly owned Subsidiary or for quarterly dividends on Parent Common Stock not in excess of 25% of Parent’s adjusted EBITDA as to any given quarter calculated in a manner consistent with Parent’s historical practices);
(iii) to the extent such action would prevent, materially delay or materially impair the ability of Parent to consummate the Merger, make any repurchase or other acquisition of any outstanding shares of Parent Common Stock (other than repurchases or other acquisitions of Parent Common Stock in open market transactions at market prices or in connection with an accelerated share repurchase transaction or similar transaction on customary terms);
(iv) split, combine, reduce or reclassify any of its issued or unissued shares of its capital stock, or issue or authorize the issuance of any other individual securities in respect of, in lieu of or entity; in substitution for, any shares of its capital stock in any manner that would reasonably be expected to have a material and adverse impact on the value of the Parent Common Stock;
(v) incur take any indebtedness for borrowed money action or omit to take any other material liability action that is intended to or obligation would reasonably be likely to result in any of the conditions to the Merger set forth in Article VII not being satisfied; or
(vi) agree, authorize or issue commit to do any debt securities of the foregoing.
(c) Nothing contained in this Agreement shall give Parent or assumethe Company, guarantee, endorse directly or otherwise as an accommodation become responsible forindirectly, the obligation right to control or direct the other party’s operations prior to the Effective Time. Prior to the Effective Time, each party will exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations. Notwithstanding anything to the contrary set forth in this Agreement, no consent of Parent or the Company shall be required with respect to any matter set forth in this Section 6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would, upon the advice of legal counsel, violate applicable Antitrust Laws. Nothing in this Agreement, including any of the actions, rights or restrictions set forth herein, will be interpreted in such a way as to require compliance by any party hereto if such compliance would result in the violation of any other individual rule, regulation or entity, policy of any Governmental Antitrust Entity or make any loans or advances;applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (FBR & Co.), Merger Agreement (B. Riley Financial, Inc.)
Interim Operations. During the period from the date of execution of this Agreement and ending on the earlier of the Effective Time and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza The Company covenants and agrees that as to itself and its business shall be conducted only in the usual and ordinary course of business consistent with past practicesSubsidiaries that, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to after the date of this Agreement and disclosed prior to the other party Effective Time and except (A) as otherwise expressly required by this Agreement, (B) as required by applicable Laws, (C) as Parent may consent to in writing or otherwise disclosed to the other party, without the prior consent of the other party, (such consent not to be unreasonably withheld: , delayed or conditioned) or (D) as set forth in Section 6.1(a) of the Company Disclosure Schedule, the business of it and 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 reasonable best efforts to protect and preserve in all material respects its assets and to preserve intact its business organizations and maintain existing relations and goodwill with Governmental Entities, customers, licensees, development collaboration or similar commercialization partners, manufacturers, suppliers, distributors, creditors, lessors, employees and other business associates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of, and in furtherance of, the foregoing, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as required by applicable Laws, (C) as Parent may consent to in writing (such consent not to be unreasonably withheld, delayed or conditioned) or (D) as set forth in Section 6.1(a) of the Company Disclosure Schedule, the Company will not and will not permit its Subsidiaries to:
(i) adopt or propose any change in its certificate of incorporation or by-laws or other applicable governing instruments;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly owned Subsidiaries of the Company, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of, individually or in the aggregate, $2,500,000, other than acquisitions pursuant to Contracts in effect as of the date of this Agreement;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or encumber any assetsof its Subsidiaries (other than the issuance of shares by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary or the issuance of Shares pursuant to Company Options, Company Restricted Shares or the Convertible Senior Notes outstanding as of the date of this Agreement) or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) create or incur any Lien material to the Company or any of its Subsidiaries on any assets of the Company or any of its Subsidiaries;
(vi) other than pursuant to the terms of Contracts in effect as of the date of this Agreement and provided to Parent prior to the date of this Agreement, make any loans, advances, guarantees or capital contributions to or investments in any Person (other than investments in cash and cash equivalents and other investments that would constitute short-term investments on the balance sheet of the Company and other than in the Company or any direct or indirect wholly owned Subsidiary of the Company);
(vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for (A) dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary or regular quarterly dividends not to exceed $0.10 per Share, declared and paid consistent with prior timing, and (B) any cash dividends paid to the Company or one of its wholly-owned Subsidiaries by a wholly-owned Subsidiary of the Company) or enter into any agreement with respect to the voting of its capital stock;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock, except from (A) holders of Company Options in full or partial payment of the exercise thereof and/or any applicable Taxes payable by such holder upon exercise of the Company Options or Company SARs or the lapse of restriction on Company Restricted Shares to the extent required or permitted under the terms of the applicable Stock Plans and award agreements or (B) former employees, directors or consultants following termination of their relationship with the Company in accordance with applicable agreements providing for the repurchase of shares upon such termination;
(ix) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for inter-company borrowings solely among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries in the ordinary course of business; consistent with past practice;
(iix) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants except as set forth in the capital budgets set forth in Section 6.1(a)(x) of the Company Disclosure Schedule and consistent therewith, make or authorize any capital expenditure;
(xi) (A) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement or (B) amend, modify or terminate any Material Contract, or cancel, modify or waive any debts, rights or claims thereunder; for purposes of this Section 7.1(c)6.1, the monetary reference in clause (A) of the definition of Material Contract shall be changed to $5,000,000; the monetary reference in clause (iiiB) reorganizeof the definition of Material Contract shall be changed to $2,500,000; the monetary reference in clause (C) of the definition of Material Contract shall be changed to $2,500,000; the monetary reference in clause (D) of the definition of Material Contract shall be changed to $2,500,000; and the monetary reference in the definition of Personal Property Leases shall be changed to $2,500,000;
(xii) make any material changes with respect to accounting policies or procedures, amalgamate, merge except as required by changes in Law or otherwise continue applicable GAAP or statutory or regulatory accounting rules or interpretations with respect thereto;
(A) settle any other Person, corporation, partnership litigation or other business organization whatsoever; proceedings before a Governmental Entity except where the settlement is limited solely to (ivI) acquire the release of claims and (II) the monetary payment by merger, amalgamation, consolidation the Company or acquisition of shares any Subsidiary does not exceed $2,000,000 (or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made $15,000,000 in the ordinary course aggregate for all such settlements) or (B) commence, join, make an appeal with respect to a lawsuit, action, claim or similar proceeding other than (I) for the routine collection of bills, (II) in such cases where the Company in good faith determines that failure to commence suit would result in the material impairment of a valuable aspect of its business, make provided, that the Company consults with Parent prior to the filing or taking of any investmentaction with respect to such lawsuit, either by purchase of shares action, claim or securitiessimilar proceeding, contributions of capital or (other than III) pursuant to subsidiaries), property transfer, or, this Agreement;
(xiv) file or amend any material Tax Return except in the ordinary course of business, purchase settle or compromise any property material Tax liability, make, change or assets revoke any material Tax election except to the extent consistent with past practice or as required by law, change any material method of Tax accounting, except as required by law, or take any action which would materially adversely affect the Tax position of the Company or of any of its Subsidiaries;
(xv) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, licenses, operations, rights, product lines, businesses or interests therein of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, except sales of Company Products in the ordinary course of business and sales of obsolete assets, other individual than pursuant to Contracts in effect prior to the date of this Agreement;
(xvi) other than in the ordinary course of business, (A) transfer, sell, license, mortgage, pledge, encumber, divest, cancel, abandon or entity; allow to lapse or expire or otherwise dispose of any Intellectual Property Rights, (vB) incur grant, extend, amend or abandon (except as required in the diligent prosecution of Owned Intellectual Property), waive or modify any indebtedness for borrowed money material rights in or to Owned Intellectual Property, (C) fail to diligently prosecute the Company’s and its Subsidiaries’ patent applications, or (D) fail to exercise a right of removal or extension under any material Owned Intellectual Property;
(xvii) except to make changes that are required by applicable Law or to satisfy contractual obligations existing as of the date hereof pursuant to Contracts or Benefit Plans which are listed on Section 6.1(a)(xvii) of the Company Disclosure Schedule, (A) terminate, enter into, amend or renew (or communicate any intention to take such action) any Benefit Plan, other than routine amendments to qualified retirement plans or health and welfare plans (other than severance plans) that do not increase benefits or result in materially increased administrative costs, (B) increase in any manner the compensation, bonus, pension, welfare, fringe or other benefits, severance or termination pay of any of the current or former directors, officers, employees or consultants of the Company or its Subsidiaries, (C) pay any bonus or incentive compensation under any Benefit Plan in excess of the amount earned based on actual performance, (D) accelerate the vesting of or lapsing of restrictions with respect to any equity-based compensation or other long-term incentive compensation under any Benefit Plan, (E) grant any new award, amend the terms of outstanding awards or change the compensation opportunity under any Benefit Plan, (F) pay any severance in excess of what is legally required under the terms of any Benefit Plan or applicable Law, (G) take any action to fund or secure the payment of any amounts under any Benefit Plan, (H) change any assumptions used to calculate funding or contribution obligations under any Benefit Plan, other than as required by GAAP, (I) hire any executive officer or any employee or consultant with maximum annual cash compensation opportunities in excess of $200,000, provided, that such new hire’s compensation and benefits are made in the ordinary course consistent with past practice and are consistent with the other material liability requirements set forth in this Agreement, (J) enter into any collective bargaining agreement or obligation other agreement with a labor union, works council or issue similar organization or (K) terminate without cause the employment of any debt securities officer of the Company;
(xviii) subject to Section 6.2, take any action or assumeomit to take any action that is reasonably likely to prevent, guaranteeinterfere with or delay the consummation of the Merger or result in any of the conditions to the Merger set forth in Article VII not being satisfied; or
(xix) agree, endorse authorize or otherwise as an accommodation become responsible forcommit to do any of the foregoing.
(b) Prior to making any formal written communications or group oral presentations to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, the obligation Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication (which comments shall not be unreasonably withheld or delayed), and Parent and the Company shall cooperate in providing any other individual such mutually agreeable communication.
(c) Subject to Section 6.5, Parent shall not take or entitypermit any of its Subsidiaries to take any action that is reasonably likely to prevent, interfere with or make delay the consummation of the Merger or result in any loans or advances;of the conditions to the Merger set forth in Article VII not being satisfied.
Appears in 2 contracts
Samples: Merger Agreement (Medicis Pharmaceutical Corp), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
Interim Operations. During the period from (a) From the date of execution of this Agreement and ending on through the earlier of the Effective Time and Closing or the termination of this Agreement, except with as otherwise expressly contemplated by this Agreement (including, for the prior written consent avoidance of doubt, Exhibit A), required by applicable Law, disclosed in Section 5.4 of the OfferorSeller Disclosure Schedule or with respect to the Retained Plants, acting reasonablyRetained Plant Assets, Retained Plant Liabilities, Put Assets and Put Liabilities, and except as otherwise for commercially reasonable actions taken in response to a business emergency or other unforeseen operational matters (but limited to necessary repairs due to breakdown or casualty and in the reasonable judgment of Seller for no longer than is required by law any such emergency or expressly permitted or specifically contemplated by this Agreement:
unforeseen matter and with prompt notice thereafter to IPH with respect to such actions taken, and in no event later than 48 hours after the taking of such actions), Seller shall cause AER and each of its Subsidiaries to (a1) Caza covenants and agrees that its business shall be conducted conduct their respective businesses only in the usual and ordinary course of business consistent with past practicespractice and (2) use reasonable best efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present officers and key employees, and it preserve the goodwill and business relationships with customers, suppliers, Governmental Entities and others having business relationships with them. Without limiting the generality of the foregoing, from the date of this Agreement through the earlier of the Closing or the termination of this Agreement, except as otherwise expressly contemplated by this Agreement (including, for the avoidance of doubt, Exhibit A), required by applicable Law, disclosed in Section 5.4 of the Seller Disclosure Schedule or with respect to the Retained Plants, Retained Plant Assets, Retained Plant Liabilities, Put Assets and Put Liabilities, without IPH’s prior written consent (which shall use all commercially reasonable efforts to maintain and preserve its businessnot be unreasonably withheld, assets and advantageous business relationships. Caza conditioned or delayed), Seller shall consult with the Offeror not in respect of AER and each of its ongoing business Subsidiaries, and affairs shall cause AER and keep the Offeror apprised each of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the followingits Subsidiaries not to:
(i) (A) amend its constating or propose to amend their respective certificates of incorporation or by-laws or equivalent organizational documents; , (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (ivB) split, combine or reclassify their outstanding membership interests or capital stock or (C) repurchase, redeem or otherwise acquire any shares of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend capital stock or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent equity interests of the OfferorTransferred Company or its Subsidiaries;
(ii) issue, which consent may be withheld in sell, transfer, pledge, encumber or dispose of, or agree to issue, sell, transfer, pledge, encumber or dispose of, any membership interests or shares of capital stock or any other class of debt or equity securities of the Offeror’s sole and absolute discretion; Transferred Company or its Subsidiaries (vii) enter into or modify any contract, agreement, commitment or arrangement it being understood that Seller makes no such covenant with respect to any shares of EEI not owned directly or indirectly by the Transferred Company), or any options, warrants or rights of any kind to acquire any membership interests or shares of capital stock or any other class of debt or equity securities of the foregoing except as otherwise permitted Transferred Company or contemplated its Subsidiaries (it being understood that Seller makes no such covenant with respect to any shares of EEI not owned directly or indirectly by this Agreementthe Transferred Company);
(ciii) (A) except for transactions disclosed Intercompany Accounts to be cancelled or otherwise settled as of the Closing pursuant to Section 5.7, incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Debt, (B) merge or consolidate with any Person or make any material acquisition of any assets, businesses, stock or other properties in excess of $375,000, other than acquisitions of (1) inventory, materials or supplies in the Disclosure Letterordinary course of business consistent with past practice or (2) already contracted by Seller, Caza will not, and will not permit the Transferred Company or any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into Subsidiaries prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other partyAgreement, without the prior consent of the other party, such consent not to be unreasonably withheld: (iC) sell, lease, transfer, pledge, dispose of or encumber any assets, except rights, securities or businesses, other than sales or dispositions of (1) electricity, obsolete, damaged or broken equipment or other commodities or Derivative Products, in each case, in the ordinary course of business; business consistent with past practice and subject to the terms of Section 5.4(a)(xiii), (ii2) expend already contracted by Seller, the Transferred Company or commit any of its Subsidiaries prior to expend the date of this Agreement, or (3) items or materials not exceeding $375,000 in the aggregate, or (D) enter into any binding Contract with respect to the foregoing;
(iv) (A) accelerate the receipt of amounts due with respect to any receivables, (B) lengthen the period for payment of accounts payable, or (C) fail to make any payment as it comes due, except in connection with a good faith dispute and, in each case of clauses (A), (B) and (C), other than in the ordinary course of business consistent with past practice to maintain customary levels of working capital for the operation of the business of the Transferred Company and its Subsidiaries;
(v) other than as required by the terms of a Benefit Plan or collective bargaining agreement or pursuant to actions in the ordinary course of business consistent with past practice that apply uniformly to, respectively, Transferred Company Employees and similarly situated other employees of Seller and its Affiliates (without regard to EEI Employees) or EEI Employees and similarly situated other employees of Seller and its Affiliates, not (A) enter into, amend or extend any collective bargaining or other labor agreements (B) enter into or amend any employment, severance or special pay agreement with any Transferred Company Employee or EEI Employee, provided that Seller or its Affiliates may enter into retention agreements (which may include customary severance provisions) for which Seller is solely liable, (C) increase the annual base salary of any Transferred Company Employee or EEI Employee or (D) adopt, enter into, or amend any Transferred Company Benefit Plan or, except as would not materially increase costs to IPH, adopt, enter into or amend, any Seller Benefit Plan in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); Transferred Company Employees or EEI Employees;
(iiivi) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than in the ordinary course of business, cause the Transferred Company or its Subsidiaries to hire any individual or permit the Transferred Company or its Subsidiaries to terminate the employment of any individual other than for cause;
(vii) modify in any material respect the Commodity Risk Policy, the Company Trading Guidelines or any similar policy, other than modifications that are more restrictive to the Transferred Company and its Subsidiaries;
(viii) effect or permit a “plant closing,” “mass layoff” or similar event under the Worker Adjustment and Retraining Notification Act or any corresponding state or local Laws (collectively, the “WARN Act”) without (A) the consent of IPH and (B) complying with all provisions of the WARN Act;
(ix) make any investmentchange in methods, either principles or practices of financial accounting in effect, except insofar as may be required by a change in GAAP or Law;
(x) (A) make or change any material Tax election, (B) change an annual accounting period or adopt or change any material accounting method with respect to Taxes, (C) amend any Tax Return, (D) enter into any closing agreement, settle or compromise any proceeding with respect to any material Tax claim or assessment relating to the Transferred Company or any of its Subsidiaries, (E) surrender any right to claim a refund of a material amount of Taxes, or (F) consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Transferred Company or any of its Subsidiaries, in each case, to the extent such action could reasonably be expected to result in a material increase in the Tax Liabilities of IPH or any of its Affiliates after the Closing;
(xi) waive, release, settle or compromise any pending or threatened Action, other than waivers, releases, settlements or compromises of any Action in the ordinary course of business consistent with past practice where the amount paid in such does not exceed $150,000 individually or $1,000,000 in the aggregate and where such waiver, release, settlement or compromise (A) does not impose future restrictions or requirements on the Business or the Transferred Company and its Subsidiaries or any of their respective assets or properties and (B) are paid or otherwise irrevocably satisfied in full prior to Closing (it being understood that this clause (xi) shall not apply with respect to Tax matters, which shall be governed by clause (x));
(xii) fail to maintain in full force and effect insurance coverage in form and amount equivalent in all material respects to the insurance coverage currently maintained with respect to the Transferred Company and its Subsidiaries and their assets and properties;
(xiii) (A) enter into, assume, amend, modify, terminate (partially or completely) (i) any Material Contract (including any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement) that would be reasonably expected to involve the payment or receipt by AER or one of its Subsidiaries in excess of $1,000,000 for each individual Contract or series of related Contracts (including, for the avoidance of doubt, the Put Option Agreement and the Put Option Asset Purchase Agreement), (ii) Material Contracts with a term in excess of one year and (iii) any other Material Contract other than in the ordinary course of business consistent with past practice and (B) enter into, assume, amend, modify, terminate (partially or completely) (except as such termination is required pursuant to Section 5.8) or waive, or amend rights or obligations under, any Affiliate Contracts or Subsidiary Contracts or any other Contract the existence of which would have been required to be disclosed on Section 3.17(a) of the Seller Disclosure Schedule; provided, further, with respect to both (A) and (B) above, Seller shall not take or forego taking, or permit any of its Affiliates to take or forego taking, any action the effect of which could cause or result in (immediately or with the passage of time) the occurrence of any of the restricted actions specified in (A) or (B) above;
(xiv) unless necessary to maintain the specified Minimum Coal Inventory, and notwithstanding clause (xiii) above, enter into any contract for the purchase of shares coal with a term of greater than 12 months, or securitiesamend or modify any existing contract for the purchase of coal to extend the term of such contract for more than 12 months; and
(xv) agree or commit to do or engage in any of the foregoing. For the avoidance of doubt, contributions the parties acknowledge that any hedging activities, including, without limitation, forward-hedging programs and the use of capital (other than derivative financial instruments such as forward contracts, futures contracts, options contracts and financial swap contracts, by the Transferred Company and its Subsidiaries in accordance with management programs and policies and/or for reducing Seller’s financial obligations with respect to subsidiaries), property transfer, or, except the Post-Closing Credit Support to the extent permitted by Section 5.9(c) of this Agreement shall be considered activities “in the ordinary course of business”; provided that any such programs and policies (including the Commodity Risk Policy and the Company Trading Guidelines) shall have been in effect as of the date of this Agreement and shall have been made available to IPH.
(b) Notwithstanding the above provisions of this Section 5.4, purchase prior to Closing, Seller may, and may cause its Affiliates to, remove all Cash from the Transferred Company or any property of its Subsidiaries to Seller or assets its Subsidiaries, in such manner as Seller shall determine (provided that it does not violate any existing contractual obligations, including the Indenture); provided that (i) Seller may not permit the distribution or dividend of any assets (other individual than Cash in accordance with this Section 5.4(b)) or entity; properties of the Transferred Company and its Subsidiaries to any of the Transferred Company’s equity holders, (ii) Seller may not remove from the Transferred Company or any of its Subsidiaries any Insurance Proceeds and must leave at the Transferred Company and its Subsidiaries an amount in Cash equal to, and must maintain in segregated accounts for the benefit of the Transferred Company or its applicable Subsidiary, all such Insurance Proceeds, (iii) in addition to any aggregate Cash amount to be transferred to Genco pursuant to Section 5.7, Seller shall cause to be retained at Closing at Genco an aggregate amount of Cash equal to the sum of (w) $70,000,000, (x) the Put Option Down Payment ($100,000,000), (y) the Put Option Additional Purchase Price (in an amount equal to at least $33,000,000) and (z) the amount, if any, by which the Alternative Gas Plant Transaction Consideration exceeds the sum of (A) the Put Option Down Payment and (B) the Put Option Additional Purchase Price (subject to the proviso in the first sentence of Section 5.24(d)) (such sum, the “Genco Retained Cash”), (iv) Seller shall cause to be retained at Closing at AERG an aggregate amount in Cash equal to $7,689,000 (or the gross proceeds of the sales described in item (i) on Section 3.7(a) of the Seller Disclosure Schedule to the extent completed at Closing) (the “AERG Retained Cash”) and (v) incur Seller shall cause to be retained at Closing at AEM an aggregate amount of Cash equal to $15,000,000 (the “AEM Retained Cash”). Notwithstanding anything to the contrary herein or elsewhere, but subject to Section 5.9(a), for the avoidance of doubt, Seller shall have the right to any indebtedness for borrowed money Cash or any other material liability instrument posted as collateral, which right shall be considered in the Marketing Company Note.
(c) Except as otherwise expressly contemplated by this Agreement or obligation or issue any debt securities or assumerequired by applicable Law, guaranteeduring the period from the date of this Agreement to the Closing Date, endorse IPH shall not, and, with respect to clauses (ii) and (iii) shall cause its Affiliates not to, without the prior written consent of Seller, (i), except as set forth on Section 5.4(c) of the IPH Disclosure Schedule, amend, repeal or otherwise as an accommodation become responsible formodify its certificate of incorporation, bylaws or comparable organizational documents in a manner that would materially and adversely affect the obligation transactions contemplated by this Agreement, (ii) take any action or willfully fail to take any action that is intended or may reasonably be expected to result in any of any other individual the conditions to the Closing set forth in Article VIII not being satisfied, or entity(iii) agree to, or make any loans or advances;commitment to, engage in any of the actions prohibited by this Section 5.4(c).
Appears in 2 contracts
Samples: Transaction Agreement (Ameren Energy Generating Co), Transaction Agreement (Dynegy Inc.)
Interim Operations. During the period from the date of execution of this Agreement and ending on the earlier of the Effective Time and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza The Company covenants and agrees that as to itself and its business shall be conducted only in the usual Subsidiaries that, from and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to after the date of this Agreement and disclosed prior to the other party Effective Time, except (A) as required by applicable Law, (B) as otherwise contemplated, required or permitted by this Agreement, (C) as Parent may approve in writing or otherwise disclosed to the other party, without the prior consent of the other party, (such consent approval not to be unreasonably withheld: , conditioned or delayed) or (D) as set forth in Section 7.1 of the Company Disclosure Letter, from the date of this Agreement and prior to the Effective Time, the business of the Company and its Subsidiaries shall be conducted in the ordinary course of business in all material respects consistent with past practice and it and its Subsidiaries shall use their respective commercially reasonable efforts to (i) sellpreserve their business organizations intact, pledge(ii) maintain existing relations with Governmental Entities, dispose customers and suppliers, including Parent, (iii) notify Parent promptly (x) after receipt of any material communication from any Governmental Entity or encumber inspections of any assetsmanufacturing, research and development or clinical trial site and before giving any material submission to a Governmental Entity and (y) prior to making any material change to a study protocol, adding new trials, making any material change to a manufacturing plan or process, or making a material change to the development timeline for any of its product candidates or programs, (iv) preserve intact and keep available the services of present employees, consultants, independent contractors and executive officers of the Company and its Subsidiaries, (v) keep in effect casualty, product liability, workers’ compensation and other insurance policies in coverage amounts substantially similar to those in effect at the date of this Agreement, (vi) preserve and protect all Registered Intellectual Property listed in the Orange Book with respect to Dificid (fidaxomicin), and (vii) preserve and protect the material Intellectual Property (other than the Registered Intellectual Property listed in the Orange Book) owned by the Company and its Subsidiaries, except in the case of clause (vii) in the ordinary course of business; (ii) expend or commit to expend any amounts . Without limiting the generality of, and in respect of capital expensesfurtherance of, excluding certain expenditures which may be agreed tothe foregoing, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to date of this Agreement until the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, orEffective Time, except for investments (A) as required by applicable Law, (B) as otherwise required or expressly permitted by this Agreement, (C) as Parent may approve in securities made in the ordinary course of businesswriting (such approval not to be unreasonably withheld, make any investment, either by purchase of shares conditioned or securities, contributions of capital (other than to subsidiaries), property transfer, delayed) or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;
Appears in 2 contracts
Samples: Merger Agreement (Optimer Pharmaceuticals Inc), Merger Agreement (Cubist Pharmaceuticals Inc)
Interim Operations. During the period (a) The Company shall, from and after the date of execution of this Agreement and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing, except with the prior written consent of the Offerorsuch approval not to be unreasonably withheld, acting reasonablyconditioned or delayed), and except as otherwise expressly required by law this Agreement or as required by applicable Law, conduct its business in the Ordinary Course of Business and, to the extent consistent therewith, shall use its reasonable best efforts to, preserve its business organization intact and maintain satisfactory relations and goodwill with Governmental Entities, customers, suppliers, licensors, licensees, distributors, creditors, lessors, employees and business associates and keep available the services of its present employees and agents. Without limiting the generality of and in furtherance of the foregoing sentence, from the date of this Agreement until the Effective Time, except as otherwise expressly permitted or specifically contemplated required by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted only , required by applicable Law, required by the express terms of any Company Material Contract made available to Parent prior to the date of this Agreement, or approved in writing by Parent, the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza Company shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend adopt or propose any change in its constating documents; Organizational Documents;
(ii) issue merge or consolidate the Company with any other Person or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or business;
(iii) acquire assets from any other Person, other than acquisitions of raw materials, inventory, equipment, tooling, and supplies in the Ordinary Course of Business;
(iv) issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, Encumber, or otherwise enter into any Contract or understanding with respect to the voting of, any shares of capital stock of the Company, securities convertible or exchangeable into or exercisable for any such shares of capital stock, or any options, warrants or other rights of any kind to acquire any such shares of capital stock or such convertible or exchangeable securities (other than on exercise or surrender in respect of currently Company Options outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities as of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities the date of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted this Agreement in accordance with or contemplated by their terms and, as applicable, the Equity Plan as in effect on the date of this Agreement; (iv) split, combine or reclassify any of its securities; );
(v) adopt a plan enter into any Contracts or other arrangements between the Company, on the one hand, and any director or officer of liquidation the Company or resolutions providing any Person beneficially owning one percent or more of the outstanding Shares, on the other hand, except for compensatory arrangements entered into in the liquidation, dissolution, merger, consolidation Ordinary Course of Business with Company Employees consistent with Section 7.1(a)(xxiii) and transactions with Parent or reorganization of Caza; its Affiliates;
(vi) create or incur any Encumbrance that is not incurred in the Ordinary Course of Business on any of the assets of the Company;
(vii) make any loans, advances, guarantees or capital contributions to or investments in any Person;
(viii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment otherwise, with respect to its Common Stock;
(whether in cash shares ix) reclassify, split, combine, subdivide or property) in respect redeem, purchase or otherwise acquire, directly or indirectly, any of its outstanding Common Stock or securities without convertible or exchangeable into or exercisable for any shares of its Common Stock;
(x) incur any Indebtedness (including the consent issuance of the Offerorany debt securities, which consent may be withheld in the Offeror’s sole and absolute discretion; warrants or other rights to acquire any debt security);
(viixi) enter into or modify any contract, agreement, commitment or arrangement with respect Contract that would have been a Company Material Contract had it been entered into prior to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(cxii) other than with respect to Company Material Contracts related to Indebtedness, which shall be governed by Section 7.1(a)(x), terminate or amend, modify, supplement or waive, or assign, convey, Encumber or otherwise transfer, in whole or in part, rights or interest pursuant to or in any Company Material Contract, except for (x) expirations of any such Contract in the Ordinary Course of Business and in accordance with the terms of such Contract with no further action by the Company or other party to such Contract, except for any ministerial actions, (y) non-exclusive licenses under Intellectual Property Rights owned or purported to be owned by the Company granted in the Ordinary Course of Business or (z) terminations, amendments, modifications, assignments, conveyances, transfers or expirations where, concurrent therewith, the Company enters into a replacement Contract providing substantially similar property, products or services on substantially similar terms;
(xiii) cancel, modify or waive any debts or claims held by the Company or waive any material rights;
(xiv) except as expressly provided for transactions disclosed by Section 7.13, amend, modify, terminate, cancel or let lapse an Insurance Policy, unless simultaneous with such termination, cancellation or lapse of any such Insurance Policy, a replacement self-insurance program is established by the Company or a replacement policy underwritten by an insurance company of nationally recognized standing is in full force and effect, in each case, providing coverage equal to or greater than the coverage under the terminated, canceled or lapsed Insurance Policy for substantially similar premiums, as applicable, as in effect as of the date of this Agreement;
(xv) other than with respect to Transaction Litigation, which shall be governed by Section 7.16, and settlement of trade accounts payable in the Disclosure LetterOrdinary Course of Business, Caza will not, and will not permit settle or compromise any Proceeding for an amount in excess of its subsidiaries to, directly $100,000 individually or indirectly, do $250,000 in the aggregate during any calendar year;
(xvi) make any changes with respect to the legal structure of the following Company or to the Company’s accounting policies or procedures, except as required by changes in GAAP or Law;
(xvii) enter into any line of business in any geographic area other than the existing lines of business of the Company and lines of products and services reasonably ancillary to any existing line of business;
(xviii) make any material changes to the existing lines of business of the Company or adopt or make any material modifications to the Company’s strategic plan;
(xix) make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim, audit, assessment or dispute, surrender any right to claim a refund or take any action which would be reasonably expected to result in an increase in the Tax liability of the Company, or, in respect of any taxable period (or portion thereof) ending after the Closing Date, the Tax liability of Parent or its Affiliates;
(xx) transfer, sell, lease, divest, cancel, allow to lapse or expire, or otherwise dispose of or transfer, or permit or suffer to exist the creation of any Encumbrance upon, any assets (tangible or intangible, including any Company Intellectual Property Rights), Licenses, product lines or business of the Company, except in connection with services provided in the Ordinary Course of Business or sales of obsolete assets;
(xxi) cancel, abandon or otherwise allow to lapse or expire any Company Intellectual Property Rights, except in the Ordinary Course of Business with respect to Company Intellectual Property Rights that are not material to any business of the Company;
(xxii) adopt or implement any shareholder rights plan or similar arrangement;
(xxiii) except as contemplated by required pursuant to the terms of any Company Benefit Plan in effect as of the date of this Agreement or pursuant as required by Law, (A) increase in any manner the compensation or fees, bonus, pension, welfare, fringe or other benefits, severance or termination pay of any Company Employee, except reasonable holiday bonuses payable to commitments all employees, reasonable compensation adjustments for customer service employees, and reasonable compensation adjustments required for exceptional performance or specific needs not to exceed $100,000 in the aggregate unless approved in advance by the Board, (B) become a party to, establish, adopt, amend, commence participation in or terminate any Company Benefit Plan or any arrangement that would have been a Company Benefit Plan had it been entered into prior to the date of this Agreement Agreement, (C) grant any new awards, or amend or modify the terms of any outstanding awards, under any Company Benefit Plan, (D) take any action to accelerate the vesting or lapsing of restrictions or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, (E) forgive any loans or make any extensions of credit in the form of a personal loan to any Company Employee (other than routine travel advances issued in the Ordinary Course of Business), (F) hire any employee or engage any independent contractor (who is a natural person) with an annual salary or wage rate or consulting fees and disclosed target cash bonus opportunity in excess of $100,000 or (G) terminate the employment of any executive officer other than for cause;
(xxiv) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, labor organization, works council or similar organization;
(xxv) fail to maintain policies and procedures designed to ensure compliance with the FCPA and Other Anti-Bribery Laws;
(xxvi) fail to maintain policies and procedures designed to ensure compliance with the Export and Sanctions Regulations in each jurisdiction in which the Company operates or is otherwise subject to jurisdiction;
(xxvii) take any action or fail to take any action that is reasonably expected to result in any of the conditions to the other party Merger set forth in writing or otherwise disclosed to the other party, without the prior consent Article VIII not being satisfied;
(xxviii) create a Subsidiary of the other partyCompany; or
(xxix) agree, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend authorize or commit to expend do any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants foregoing.
(b) Nothing set forth in this Section 7.1(c); (iii) reorganizeAgreement shall give Parent, amalgamate, merge directly or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible forindirectly, the obligation of any other individual right to control or entity, or make any loans or advances;direct the Company’s operations prior to the Effective Time
Appears in 2 contracts
Samples: Merger Agreement (AeroGrow International, Inc.), Merger Agreement (SMG Growing Media, Inc.)
Interim Operations. During From the period date of this Agreement until the earlier of the Effective Time and termination of this Agreement in accordance with its terms, the Company covenants and agrees as to itself and its Subsidiaries that it will use its commercially reasonable efforts, from the date of execution this Agreement until the Effective Time, unless Parent shall otherwise approve in writing, to cause the business of it and its Subsidiaries to be conducted, in all material respects, in the ordinary and usual course consistent with past practice and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to (a) preserve their business organizations, assets and lines of business intact, (b) maintain in effect all of their foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations that are material to the Company and its Subsidiaries, taken as a whole, (c) maintain all leases and all personal property (reasonable wear and tear excepted) that are material to the Company and its Subsidiaries, taken as a whole, used by the Company and its Subsidiaries and necessary to conduct its business in the ordinary course of business consistent with past practice (but with no obligation to renew or extend any lease or to otherwise exercise any rights or options it may have under any lease, including but not limited to rights to purchase or increase or decrease its current properties) and (d) maintain in all material respects its and their existing relations and goodwill with Governmental Entities, customers, suppliers, employees and agents. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement and ending on until the earlier of the Effective Time and the termination of this AgreementAgreement in accordance with its terms, except with the prior written consent of the Offeror, acting reasonably, and except (A) as otherwise expressly required by law or expressly permitted or specifically contemplated by this Agreement, (B) as Parent may approve in writing, (C) as required by applicable Laws or definitive interpretations thereof or by any Governmental Entity, or (D) as set forth in Section 4.1(a) of the Company Disclosure Letter, the Company will not, and will not permit its Subsidiaries, to:
(ai) Caza covenants and agrees that adopt any amendments to its business shall be conducted only charter or bylaws or, in the usual and case of any Subsidiary that is not a corporation, similar applicable organizational documents;
(ii) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, business combination, restructuring, recapitalization or other reorganization (other than this Agreement), (B) acquire by merging or consolidating with, or by purchasing an equity interest in or portion of the assets of (other than as set forth in Section 4.1(a)(iii)), or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, (C) take or omit to take any action that would cause any rights under Material Intellectual Property, including with respect to any registrations or applications for registration, to lapse, be abandoned or canceled, or fall into the public domain, other than actions or omissions in the ordinary course of business consistent with past practicespractice and not otherwise in violation of this Section 4.1, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous or (D) enter into a joint venture or partnership or similar third-party business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoenterprise;
(biii) Caza shall notacquire assets or capital stock from any other Person, directly other than (A) in the ordinary course of business consistent with past practice or indirectly(B) acquisitions of assets at or below fair market value with a purchase price not in excess of $500,000 individually or $7,500,000 in the aggregate, do in each case for any transaction or permit to occur series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any shares of capital stock of the Company or any of the following:
(i) amend its constating documents; (ii) issue Subsidiaries (other than (A) the issuance of Shares upon the exercise of Company Options or SARs and the settlement of Restricted Stock Awards, RSUs and PSPUs (and dividend equivalents thereon, if applicable) outstanding on exercise the date of this Agreement or surrender (B) the issuance of currently outstanding Caza Options)shares of capital stock by a Subsidiary of the Company to the Company or another Subsidiary of the Company or (C) the issuance, sale, pledge, disposition of, grant, sell transfer, encumbrance, or pledge or agree to issueauthorization of the issuance, sale, pledge, disposition, grant, sell transfer or pledge encumbrance of capital stock of any securities Subsidiary of Caza, the Company in connection with financing arrangements not restricted under this Agreement) or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible, exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; ;
(v) adopt a plan other than ordinary course trade credit made in the ordinary course of liquidation business, make any loans, advances or resolutions providing for capital contributions to or investments in any Person (other than the liquidation, dissolution, merger, consolidation Company or reorganization any direct or indirect Subsidiary of Caza; the Company) in excess of $1,000,000 in the aggregate at any time;
(vi) (A) declare, set aside or pay any dividend or other distribution distribution, whether payable in cash, stock or payment other property, with respect to its capital stock, except for dividends by any wholly owned direct or indirect Subsidiary of the Company to the Company or any other wholly owned direct or indirect Subsidiary of the Company; provided, that the Company may, at its election, pay the $0.15 per Share cash dividend declared by the Company on June 17, 2015, (whether in cash shares B) split, combine or property) reclassify the Shares or any other outstanding capital stock of the Company or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution therefor, (C) redeem, purchase or otherwise acquire, directly or indirectly, any capital stock or other Rights of the Company, except for acquisitions, or deemed acquisitions, of Shares or other equity securities of the Company in connection with (1) the satisfaction of Tax withholding obligations with respect to Company Options, SARs, Restricted Stock Awards, RSUs, or PSPUs outstanding on the date of this Agreement, (2) the payment of the exercise price of Company Options or SARs outstanding on the date of this Agreement with Shares (including in connection with “net exercises”) and (3) forfeitures of Company Options, SARs, Restricted Stock Awards, RSUs or PSPUs outstanding on the date of this Agreement, in the case of each of (1), (2) and (3), pursuant to their terms as in effect on the date of this Agreement, and except for acquisitions or deemed acquisitions of Shares or other equity securities of the Company or any of its outstanding securities without wholly owned Subsidiaries by the consent Company or any of the Offerorits wholly owned Subsidiaries, which consent may be withheld in the Offeror’s sole and absolute discretion; or (viiD) enter into or modify any contract, agreement, commitment understanding or arrangement with respect to any the sale, voting, registration or repurchase of the foregoing except as otherwise permitted Company’s capital stock or contemplated by this Agreement;
(c) except for transactions disclosed in other Rights of the Disclosure Letter, Caza will not, and will not permit Company or any of its subsidiaries to, directly Subsidiaries; provided that nothing contained herein shall prohibit dividends and distributions paid or indirectly, do any made on a pro rata basis by direct or indirect Subsidiaries of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except Company in the ordinary course of business; consistent with past practice;
(iivii) expend or commit to expend any amounts in respect of capital expensesredeem, excluding certain expenditures which may be agreed torepurchase, from time to timeprepay, by the Offeror in writingdefease, which for greater certaintyincur, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganizeassume, amalgamateendorse, merge guarantee or otherwise continue with become liable for or modify the terms of any Indebtedness, including any Indebtedness under the existing revolving credit facilities of the Company, in excess, in the aggregate, of $3,000,000 of letters of credit and $1,000,000 of all other Indebtedness. “Indebtedness” of any Person means (A) all indebtedness for borrowed money, (B) any other Personindebtedness which is evidenced by a note, corporationbond, partnership indenture, debenture or similar Contract, (C) all capitalized lease obligations of such Person or obligations of such Person to pay the deferred and unpaid purchase price of property and equipment, other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than trade payables incurred in the ordinary course of business, make (D) all obligations of such Person pursuant to securitization or factoring programs or arrangements, (E) all guarantees and arrangements having the economic effect of a guarantee of such Person of any investmentother Indebtedness of any other Person, either (F) all obligations or undertakings of such Person to maintain or cause to be maintained the financial position or financial covenants of others, for the purpose of assuring the holder of any obligation which would constitute Indebtedness under any other clause of this definition of such others, or to purchase any other Person’s Indebtedness of the type referred to in any other clause of this definition or any security therefor (excluding any such obligation or undertaking by purchase the Company or any Subsidiary thereof in respect of shares Indebtedness of the Company or securitiesany Subsidiary thereof, contributions to the extent (i) such Indebtedness is in existence on the date hereof or is permitted hereby and (ii) the terms of capital (other than to subsidiariessuch Indebtedness require such obligation or undertaking), property transfer(G) net cash payment obligations of such Person under swaps, oroptions, except derivatives and other hedging agreements or arrangements that will be payable upon termination thereof (assuming they were terminated on the date of determination), and (H) reimbursement obligations under (i) letters of credit, bank guarantees and other similar contractual obligations entered into by or on behalf of such Person or (ii) surety, customs, reclamation or performance bonds other than, in the case of this clause (ii) those entered into in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;business consistent with past practice.
Appears in 2 contracts
Samples: Merger Agreement (Con-Way Inc.), Merger Agreement (XPO Logistics, Inc.)
Interim Operations. During the period (a) The Company covenants and agrees that, from the date of execution of this Agreement until the Effective Time (unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed)), and ending except (x) as otherwise expressly required, contemplated or permitted by this Agreement, (y) as set forth in Section 7.1(a) of the Company Disclosure Letter or (z) as required by applicable Laws (including any Law issued in response to the COVID-19 (or SARS-CoV-2) virus), the Company shall use its reasonable best efforts to conduct its business in the ordinary course of business consistent with past practice in all material respects and, to the extent consistent therewith, it shall use its reasonable best efforts to preserve its business organizations substantially intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, production companies, distributors, licensees, licensors, creditors, lessors, employees and business associates and others having material business dealings with it and keep available the services of its present employees and agents. Without limiting, and in furtherance of, the foregoing, from the execution of this Agreement until the Effective Time, except (1) as otherwise expressly required, contemplated or permitted by this Agreement, (2) as set forth in Section 7.1(a) of the Company Disclosure Letter or (3) as required by applicable Laws (including any Law issued in response to the COVID-19 (or SARS-CoV-2) virus), the Company will not (unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed)):
(i) adopt or propose any change in its certificate of incorporation or bylaws;
(ii) merge or consolidate the Company with any other Person or restructure, reorganize or completely or partially liquidate;
(iii) acquire any assets outside of the ordinary course of business consistent with past practice from any other Person for consideration in excess of $5,000,000 in any individual transaction or series of related transactions or $20,000,000 in the aggregate;
(iv) issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any shares of capital stock of the Company (other than the issuance of shares in respect of the settlement of Company Equity Awards outstanding as of the date hereof (or issued after the date hereof in accordance with the terms of this Agreement) in accordance with their terms and, as applicable, the Company Stock Plans as in effect on the date hereof or as the same may be amended in accordance with the terms of this Agreement), securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) create or incur any Lien (other than any Permitted Lien) that would be material to the Company, taken as a whole, on any assets of the Company;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person, other than advances to Company Employees in respect of travel or other related business expenses, in each case in the ordinary course of business consistent with past practice;
(vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than the withholding of shares to satisfy withholding Tax obligations upon the exercise, vesting or settlement of Company Equity Awards outstanding as of the date hereof (or issued after the date hereof in accordance with the terms of this Agreement) in accordance with their terms and, as applicable, the Company Stock Plans as in effect on the date hereof or as the same may be amended in accordance with the terms of this Agreement);
(ix) incur any indebtedness for borrowed money with an aggregate principal amount in excess of $5,000,000 or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company;
(x) make or authorize any capital expenditure in excess of $5,000,000 individually or in the aggregate during any twelve (12)-month period beginning on or after the date hereof;
(xi) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement other than in the ordinary course of business consistent with past practice;
(xii) amend, modify, cancel or terminate any Material Contract, lease or sublease, or cancel, modify or waive any material debts or claims held by it or waive any material rights, in each case other than in the ordinary course of business consistent with past practice;
(xiii) amend any material License in any material respect, or allow any such License to lapse, expire or terminate, other than (A) amendments, renewals or extensions of Licenses in the ordinary course of business consistent with past practice or (B) non-renewal or non-extension of Licenses that are not necessary to conduct the Company’s business as then conducted;
(xiv) except as expressly provided for by Section 7.12, amend, modify, terminate or cancel a material insurance policy (or reinsurance policy) or self-insurance program of the Company in effect as of the date hereof, unless, simultaneous with such termination or cancellation, replacement policies underwritten by insurance and reinsurance companies of nationally recognized standing or self-insurance programs, in each case, providing coverage equal to or greater than the coverage under the terminated or canceled policies for substantially similar premiums, as applicable, are in full force and effect;
(xv) make any changes with respect to accounting policies or procedures, except as required by GAAP or by applicable Law;
(xvi) other than with respect to Transaction Litigation, which is governed by Section 7.14(c), settle or compromise any Proceeding which would reasonably be expected to (A) prevent or materially delay or impair the consummation of the Mergers or the other transactions contemplated by this Agreement, (B) involve any material injunctive or equitable relief or impose material restrictions on the Company’s business, taken as a whole, or (C) involve any criminal liability or any admission of material wrongdoing or material wrongful conduct by the Company;
(xvii) (A) make, change or revoke any material Tax election, (B) enter into any settlement or compromise of any material Tax liability, (C) file any amended Tax Return with respect to any material Tax, (D) adopt or change any method of Tax accounting or Tax accounting period, (E) enter into any closing agreement relating to any material Tax, (F) agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of any material Tax, (G) surrender any right to claim a material Tax refund or (H) fail to file when due (taking into account any applicable extensions) any material Tax Return required to be filed with respect to the Company in a jurisdiction where the Company currently files such Tax Returns;
(xviii) transfer, sell, lease, license, mortgage, surrender, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, rights, properties or businesses (including Intellectual Property Rights) with a fair market value in excess of $5,000,000, in the aggregate, except (A) for sales or other dispositions of obsolete assets, (B) for transfers, sales or other dispositions of inventory in the ordinary course of business consistent with past practice, (C) pursuant to Contracts in effect prior to the date hereof, (D) for non-exclusive licenses in the ordinary course of business or (E) for abandonments, non-renewals or non-extensions of Intellectual Property Rights that are not material to the conduct of the Company’s business as then conducted;
(xix) except as required pursuant to the terms of any Benefit Plan in effect as of the date hereof, or as adopted or amended following the date hereof in accordance with this Agreement, or in the ordinary course of business consistent with past practice (including approval from the Company Board or the compensation committee thereof, as applicable), (A) materially increase in any manner the compensation or consulting fees, bonus or pension or welfare benefits of any Company Employee, (B) materially reduce compensation or benefits with respect to any Company Employees, (C) grant any severance, termination, retention or change-in-control pay to any Company Employee, (D) become a party to, establish, adopt, materially amend, commence participation in or terminate any material Benefit Plan or any arrangement that would have been a material Benefit Plan had it been in existence as of the date hereof, (E) grant any new Company Equity Awards or amend or modify the terms of any outstanding Company Equity Awards, (F) take any action to accelerate the vesting, lapsing of restrictions or payment, or to fund or in any other way secure the payment, of compensation or benefits provided to any Company Employee or (G) forgive any loans or issue any loans to Company Employees;
(xx) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a trade union, labor union, works council or similar organization;
(xxi) materially amend any Privacy Policies or the operation or security of any IT Assets used in its business in any manner that is materially adverse to the Company, in each case other than as required by applicable Law;
(xxii) (A) enter into any new line of business other than any line of business in which the Company is engaged (or plans to be engaged) in as of the date of this Agreement or (B) form or acquire securities or ownership interests in a Person which would constitute its Subsidiary; or
(xxiii) agree, commit, arrange, authorize, resolve or enter into any understanding to do any of the foregoing.
(b) Parent covenants and agrees that, from the execution of this Agreement until the Effective Time (unless the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed)), and except (x) as otherwise expressly required, contemplated or permitted by this Agreement, (y) as set forth in Section 7.1(b) of the Parent Disclosure Letter or (z) as required by applicable Laws (including any Law issued in response to the COVID-19 (or SARS-CoV-2) virus), Parent shall, and shall cause each of its Subsidiaries to, use its and their reasonable best efforts to conduct its business in the ordinary course of business consistent with past practice in all material respects and, to the extent consistent therewith, Parent shall, and shall cause each of its Subsidiaries to, use its and their reasonable best efforts to preserve its business organizations substantially intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, production companies, distributors, licensees, licensors, creditors, lessors, employees and business associates and others having material business dealings with it and keep available the services of its present employees and agents. Without limiting, and in furtherance of, the foregoing, from the execution of this Agreement until the Effective Time, except (1) as otherwise expressly required, contemplated or permitted by this Agreement, (2) as set forth in Section 7.1(b) of the Parent Disclosure Letter or (3) as required by applicable Laws (including any Law issued in response to the COVID-19 (or SARS-CoV-2) virus), Parent shall not, and shall cause each of its Subsidiaries not to (unless the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed)):
(i) adopt or propose any change in the certificate of incorporation or bylaws of Parent, Merger Sub or Merger Sub II;
(ii) merge or consolidate Parent, Merger Sub or Merger Sub II with any other Person, other than any merger or consolidation of Parent in which Parent is the surviving Person;
(iii) completely or partially liquidate Parent, Merger Sub or Merger Sub II;
(iv) issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any shares of capital stock of Parent, securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, in each case other than (A) the issuance of equity awards under the Parent Stock Plan in the ordinary course of business consistent with past practice and (B) the issuance of shares in respect of the settlement of equity awards outstanding as of the date hereof (or issued after the date hereof) in accordance with their terms and, as applicable, the Parent Stock Plan;
(v) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(vi) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than the withholding of shares to satisfy withholding Tax obligations upon the exercise, vesting or settlement of equity awards outstanding as of the date hereof (or issued after the date hereof) under the Parent Stock Plan in accordance with their terms and, as applicable, the Parent Stock Plan); or
(vii) agree, commit, arrange, authorize, resolve or enter into any understanding to do any of the foregoing.
(c) Subject to Section 7.2(f), from the execution of this Agreement until the Effective Time, the Company shall not terminate, amend, modify or waive any provision of any confidentiality agreement, Standstill Agreement or similar agreement to which the Company is a party and shall use reasonable best efforts to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, in each case except to the extent the Company Board or the Special Committee determines in good faith after consultation with its outside legal counsel that such action or failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law.
(d) Nothing contained in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the Company’s operations prior to the Effective Time, and nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations. Prior to the Effective Time, each of Parent and the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations, if any.
(e) From the date of this Agreement until the earlier to occur of the Effective Time and the termination of this Agreement, except Agreement in accordance with the prior written consent of terms set forth in Article IX, neither the Offeror, acting reasonablyCompany nor Parent shall, and neither the Company nor Parent shall permit any of its Subsidiaries to, take, or agree or commit to take, any action (except as otherwise required by law or expressly permitted by Section 7.2 or specifically Section 7.3 of this Agreement), including proposing or undertaking any merger, consolidation or acquisition, in each case, that would reasonably be expected to, individually or in the aggregate, prevent or materially delay or impair the consummation of the Mergers and the other transactions contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;.
Appears in 2 contracts
Samples: Merger Agreement (BridgeBio Pharma, Inc.), Merger Agreement (BridgeBio Pharma, Inc.)
Interim Operations. During the period (a) The Company covenants and agrees as to itself and its Subsidiaries that, from the date of execution of this Agreement and ending on until the earlier of the Gulf Effective Time and the termination of this AgreementAgreement pursuant to Article VIII, except with the prior written consent of the Offeror, acting reasonablyCompany shall, and except shall cause each of its Subsidiaries to, conduct their respective businesses in the Ordinary Course and, to the extent consistent therewith, the Company shall, and shall cause each of its Subsidiaries to, use their respective commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, licensors, licensees, distributors, creditors, lessors, employees and business associates having significant business dealings with them and keep available the services of its and its Subsidiaries’ present officers, employees and agents, except, in each case, as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
, as required by applicable Law, or otherwise approved in writing by Parent (a) Caza covenants which approval shall not be unreasonably withheld, conditioned or delayed). Without limiting the generality of and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any furtherance of the followingforegoing, from the date of this Agreement until the earlier of the Gulf Effective Time and the termination of this Agreement pursuant to Article VIII, except as otherwise expressly (A) contemplated by this Agreement, (B) required by applicable Law, (C) as approved in writing by Parent (which approval shall not be unreasonably withheld, conditioned or delayed), (D) required under any Material Contract or (E) set forth in Section 6.1 of the Company Disclosure Letter, the Company shall not and shall cause its Subsidiaries not to:
(i) amend adopt or propose any change in its constating documents; Organizational Documents;
(ii) issue merge or consolidate itself or any of its Subsidiaries with any other Person, except for any such transactions among its wholly owned Subsidiaries, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) acquire assets from any other Person with a fair market value or purchase price in excess of $500,000 individually or $1,000,000 in the aggregate in any transaction or series of related transactions, in each case, including any amounts or value reasonably expected to be paid in connection with a future earn-out, purchase price adjustment, release of “holdback” or similar contingent payment obligation, or that would reasonably be expected to prevent, materially delay or materially impair the ability of the Company or Parent, as applicable, to consummate the Transactions prior to the Outside Date;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or Encumbrance of, or otherwise enter into any Contract or understanding with respect to the voting of, any shares of its capital stock or of any of its Subsidiaries (other than (A) the Fxxxxxxx Agreement or (B) the issuance of shares (i) by its wholly owned Subsidiary to it or another of its wholly owned Subsidiaries, (ii) in respect of Company RSUs outstanding as of the date of this Agreement in accordance with their terms and, as applicable, the Company Stock Plan as in effect on the date of this Agreement or (iii) in connection with the exercise or surrender of currently warrants outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities as of Cazathe date of this Agreement, or securities convertible or exchangeable into or exchangeable or exercisable forfor any shares of such capital stock, or otherwise evidencing any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) create or incur any Encumbrance having a right to acquire, securities value in excess of Caza; (iii) redeem, purchase $200,000 individually or otherwise acquire $500,000 in the aggregate on any of its outstanding securities, except as permitted pursuant to the terms thereof assets or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; Subsidiaries;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than to or from the Company and any of its wholly owned Subsidiaries or to or from Parent and any of its wholly owned Subsidiaries, as applicable) in excess of $200,000 individually or $500,000 in the aggregate;
(vii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to it or to any other direct or indirect wholly owned Subsidiary);
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock, other than the foregoing except withholding of shares of Company Common Stock to satisfy withholding Tax obligations upon the vesting or settlement of Company RSUs outstanding as otherwise permitted or contemplated by of the date of this Agreement in accordance with their terms and, as applicable, the Company Stock Plan as in effect on the date of this Agreement;
(cix) incur any Indebtedness (including the issuance of any debt securities, warrants or other rights to acquire any debt security), except for (A) Indebtedness for borrowed money incurred in the Ordinary Course not to exceed $200,000 individually or $500,000 in the aggregate, or (B) Indebtedness in replacement of existing Indebtedness for borrowed money on terms substantially consistent with or more favorable to the Company than the Indebtedness being replaced;
(x) except for transactions disclosed to the extent expressly provided by, and consistent with the line items set forth in, the Company’s capital budget set forth in Section 6.1(a)(x) of the Company Disclosure Letter, Caza will notmake or authorize any payment of, and will not permit or accrual or commitment for, capital expenditures;
(xi) enter into any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments Contract that would have been a Company Material Contract had it been entered into prior to the date of this Agreement or amend or modify in any material respect, supplement, waive any material term, terminate, assign, convey, encumber or otherwise transfer, in whole or in part, rights or interest pursuant to or in any Company Material Contract, other than expirations of any such Contract in the Ordinary Course in accordance with the terms of such Contract;
(xii) cancel, modify or waive any debts or claims held by it or any of its Subsidiaries or waive any rights held by it or any of its Subsidiaries having in each case a value in excess of $200,000 individually or $500,000 in the aggregate;
(xiii) settle any Proceeding for an amount in excess of $200,000 individually or $500,000 in the aggregate or any obligation or liability of it in excess of such amount or on a basis that would result in the imposition of any Governmental Order that would restrict the future activity or conduct of it or any of its Subsidiaries in any material respect or a finding or admission of a material violation of Law or material violation of the rights of any Person;
(xiv) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP or applicable Law;
(xv) enter into any line of business in any geographic area, other than the existing lines of business of the Company and disclosed its Subsidiaries solely within the United States;
(xvi) materially modify, cancel, terminate, rescind or adversely affect any Company Material License;
(xvii) other than in the Ordinary Course, make, change or revoke any material Tax election, change any annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return in respect of material Taxes, enter into any closing agreement with respect to Taxes or settle any material Tax claim, audit, assessment or dispute, surrender any right to claim a material refund, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of any material Tax, or take any other action with respect to Taxes which is reasonably likely to result in a material increase in the Tax liability of the Company or its Subsidiaries, or, in respect of any taxable period (or portion thereof) ending after the Closing Date, the Tax liability of Parent or its Affiliates;
(xviii) transfer, sell, lease, divest, cancel or otherwise dispose of, or permit or suffer to exist the creation of any Encumbrance upon, any assets (tangible or intangible), product lines or businesses of the Company or any of its Subsidiaries, including capital stock of the Company and any of its Subsidiaries, except in connection with non-exclusive licenses or services provided in the Ordinary Course and sales of obsolete assets and except for sales, leases, licenses or other dispositions of tangible assets (not including services) with a fair market value not in excess of $200,000 individually or $500,000 in the aggregate;
(xix) cancel, abandon or otherwise allow to lapse or expire any material Company Intellectual Property Rights that are Registered;
(xx) except as required pursuant to the terms of any Company Benefit Plan in effect as of the date of this Agreement or in the Ordinary Course, (A) increase the compensation or consulting fees, bonus, pension, welfare, fringe or other benefits, severance or termination pay of any Company Employee, (B) become a party to, establish, adopt, amend, commence participation in or terminate any Company Benefit Plan or any arrangement that would have been a Company Benefit Plan had it been entered into prior to this Agreement, (C) grant any new awards, or amend or modify the terms of any outstanding awards, under any Company Benefit Plan, (D) take any action to accelerate the vesting or lapsing of restrictions or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, (E) forgive any loans or issue any loans (other than routine travel advances issued in the Ordinary Course) to any Company Employee or (F) hire any employee or engage any independent contractor (who is a natural person) with an annual salary or wage rate or consulting fees in excess of $250,000;
(xxi) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, works council or similar organization;
(xxii) utilize government borrowing, grant programs, or social insurance programs, such as the CARES Act, in each case related to the COVID-19 pandemic;
(xxiii) make or authorize any payment or spending, or accrual or commitment for any payment or spending (including payment or spending with respect to advertising and marketing activities), in connection with entering into any new geographic area or new line of business;
(xxiv) apply or seek to apply for any license that, if granted, would be reasonably expected to be a Company Material License had it been granted prior to date of this Agreement; or
(xxv) agree, authorize or commit to do any of the foregoing. Notwithstanding the foregoing, any action or inaction taken by the Company or any of its Subsidiaries, to the extent required by applicable Law, directive, guidelines or recommendations, to address the COVID-19 pandemic (including, to the extent required by applicable Law, compliance with any quarantine, “shelter in place,” “stay at home,” social distancing, shut down, closure, sequester, safety, or similar Law, directive, guidelines or recommendations promulgated by any Governmental Entity, including the Centers for Disease Control that is outside of the Ordinary Course shall not be deemed to be a breach of this Section 6.1, provided that the Company consults with Parent prior to taking any such action.
(b) Parent covenants and agrees as to itself and its Subsidiaries that, from the date of this Agreement until the earlier of the Gulf Effective Time and the termination of this Agreement pursuant to Article VIII (unless the Company shall otherwise approve in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent (which approval shall not to be unreasonably withheld: , conditioned or delayed)), except as otherwise expressly (A) contemplated by this Agreement, (B) required by applicable Law, (C) required under Contracts to which Parent or any of its Subsidiaries is a party or (D) set forth on Section 6.1(b) of the Parent Disclosure Letter, Parent shall not, and shall cause its Subsidiaries not to:
(i) selladopt or propose any change in Parent’s Organizational Documents in any manner that would prohibit the consummation of the Transactions; provided, pledge, dispose that any amendment to Parent’s articles of incorporation to increase the authorized number of shares or encumber any assets, except series of the capital stock of Parent shall in no way be restricted by the ordinary course of business; foregoing;
(ii) expend declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to it or to any other direct or indirect wholly owned Subsidiary);
(iii) split, combine, reduce or reclassify any of its issued or unissued shares of its capital stock, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, any shares of its capital stock in any manner that would reasonably be expected to have a material and adverse impact on the value of the Parent Class A Common Stock; or
(iv) agree, authorize or commit to expend do any amounts of the foregoing.
(c) Nothing contained in respect of capital expensesthis Agreement shall give Parent or the Company, excluding certain expenditures which may be agreed todirectly or indirectly, from time the right to time, by control or direct the Offeror in writing, which for greater certainty, shall not be subject other Party’s operations prior to the covenants Gulf Effective Time. Prior to the Gulf Effective Time, each Party will exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations. Notwithstanding anything in this Agreement to the contrary, no consent of Parent or the Company shall be required with respect to any matter set forth in this Section 7.1(c); (iii) reorganize6.1 or elsewhere in this Agreement to the extent that the requirement of such consent would, amalgamateupon the advice of legal counsel, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;violate applicable Antitrust Law.
Appears in 2 contracts
Samples: Merger Agreement (DraftKings Inc.), Merger Agreement (Golden Nugget Online Gaming, Inc.)
Interim Operations. During the period Each of Grace and Fresenius AG (for itself and on behalf of Fresenius AG) covenants and agrees as to itself and its subsidiaries that, from and after the date of execution of this Agreement and ending on the earlier of hereof until the Effective Time and the termination of this AgreementTime, except with insofar as the prior written other parties shall otherwise consent of the Offeror, acting reasonably, and or except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:, the Contribution Agreement, the Distribution Agreement or its Disclosure Letter (provided that, as used herein, all references to Grace (and/or its Affiliates) shall be deemed to refer to Grace and its Affiliates which conduct the NMC Business, consistent with Section 9.8 hereof, except as otherwise specifically provided):
(a) Caza covenants To the extent reasonably practicable, taking into account any operational matters that may arise that are primarily attributable to the pendency of the Reorganization, the business of it and agrees that its business shall subsidiaries will be conducted only in the ordinary and usual and ordinary course of business consistent with past practicespractice and existing business plans previously disclosed to the other parties and, to the extent consistent therewith, it and it shall its subsidiaries will use all commercially reasonable efforts to preserve their business organization intact and maintain their existing relations with customers, suppliers, employees and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;associates.
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
It will not (i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities stock owned by it in any of Cazaits subsidiaries or, in the case of Fresenius AG, any FWD Business Subsidiary; (ii) amend its Certificate of Incorporation or securities convertible into By-laws (or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Cazasimilar organizational document); (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securitiesoutstanding capital stock; or (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (viiv) declare, set aside or pay any dividend payable in stock or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement property with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;its capital stock.
(c) except for transactions disclosed in the Disclosure LetterNeither Grace, Caza will notFresenius USA, and will not permit nor any of its their respective subsidiaries toor, directly or indirectlyFresenius AG, do solely with respect to any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other partyFWD Business Subsidiary, without the prior consent of the other partywill issue, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber encumber, or authorize or propose the issuance, sale, pledge, disposition or encumbrance of, any assetsshares of, except or securities convertible or exchangeable for, or options, puts, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class other than common shares issuable pursuant to options, warrants and other convertible securities outstanding on the date hereof and disclosed in its Disclosure Letter, and employee stock options granted after the date hereof in the ordinary course of business.
(d) None of Grace, Fresenius USA or Fresenius AG, with respect to the FWD Business, will (i) transfer, lease, license, guarantee, sell, mortgage, pledge or dispose of any property or assets encumber any property or assets other than in the ordinary and usual course of business; (ii) expend authorize or commit to expend any amounts in respect of make capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c)expenditures; (iii) reorganizemake any acquisition of, amalgamateor investment in, merge assets, stock or otherwise continue with other securities of any other Person, corporation, partnership person or entity other business organization whatsoever; than its wholly owned subsidiaries or (iv) acquire make any divestiture.
(e) Except as required by mergeragreements or arrangements disclosed in its SEC Documents or its Disclosure Letter, amalgamationneither it nor any of its subsidiaries or, consolidation in the case of Fresenius AG, any FWD Business Subsidiary, will grant any severance or acquisition of shares termination pay to, or assets) enter into, extend or amend any corporationemployment, partnership consulting, severance or other business organization compensation agreement with, any director, officer or division thereof, orother of its employees, except for investments in securities made to other employees in the ordinary course in a manner consistent with past practice, which would bind Newco (or its subsidiary) after the Reorganization.
(f) Except as may be required to satisfy contractual obligations existing as of businessthe date hereof (and disclosed to the other parties hereto) and the requirements of applicable law, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, and except in the ordinary course of business, purchase neither it nor any property or assets of its subsidiaries or, in the case of Fresenius AG, any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assumeFWD Business Subsidiary, guaranteewill establish, endorse or otherwise as an accommodation become responsible foradopt, the obligation of any other individual or entityenter into, make, amend or make any loans elections under any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, employee stock ownership, deferred compensation, employment, termination, severance or advances;other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees which would affect Newco (or its subsidiary), except in a manner consistent with past practice.
(g) It will not implement any change in its accounting principles, practices or methods, other than as may be required by German GAAP, in the case of Fresenius AG, or US GAAP, in the case of Grace and Fresenius USA, other than as may be necessary or advisable in connection with the Distribution.
(h) Neither it nor any of its subsidiaries will authorize or enter into an agreement to take any of the actions referred to in paragraphs (a) through (g) above.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Fresenius Aktiengesellschaft), Agreement and Plan of Reorganization (Grace W R & Co /Ny/)
Interim Operations. During (a) Except (i) as expressly contemplated, required or permitted by this Agreement, (ii) as required by applicable Law, (iii) as approved in writing by Parent (such approval not to be unreasonably withheld, delayed or conditioned), (iv) as set forth on Section 6.01 of the period Company Disclosure Schedule, or (v) for any necessary or advisable actions taken in good faith to respond to the actual or reasonably anticipated effects of COVID-19 or to comply with COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (v), to the extent permitted under applicable Law and practicable under the circumstances, the Company shall provide prior notice to and consult in good faith with Parent prior to taking such action), from the date of execution of this Agreement and ending on until the earlier to occur of the Effective Time and the termination of this AgreementAgreement pursuant to Article 8 and the Effective Time, except with the prior written consent of the Offeror, acting reasonablyCompany will, and except will cause its Subsidiaries to, use its and their commercially reasonable efforts to (A) conduct their businesses in the ordinary course of business in all material respects and (B) preserve intact their business organizations and relationships with customers, suppliers, distributors and other Persons with which it has material business dealings.
(b) Except (A) as otherwise expressly contemplated, required by law or expressly permitted or specifically contemplated by this Agreement, (B) as required by applicable Law, (C) as approved in writing by Parent (such approval not to be unreasonably withheld, delayed or conditioned), (D) as set forth on Section 6.01 of the Company Disclosure Schedule, or (E) for any necessary or advisable actions taken in good faith to respond to the actual or reasonably anticipated effects of COVID-19 or to comply with COVID-19 Measures (provided, that, with respect to actions taken or omitted to be taken in reliance on this clause (E), to the extent permitted under applicable Law and practicable under the circumstances, the Company shall provide prior notice to and consult in good faith with Parent prior to taking such action), from the date of this Agreement until earlier to occur of the termination of this Agreement pursuant to Article 8 and the Effective Time, the Company will not, and will cause its Subsidiaries not to:
(ai) Caza covenants and agrees that its business shall be conducted only (x) adopt any change in the usual certificate of incorporation or bylaws of the Company or (y) adopt any change in the organizational documents of any of the Company’s Subsidiaries, in each case whether by merger consolidation or otherwise;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, or restructure, reorganize, recapitalize or completely or partially liquidate or dissolve or otherwise enter into any agreement or arrangement imposing any material restrictions on the assets, operations or business of the Company or any of its Subsidiaries;
(iii) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants, restricted shares, restricted share units, performance share units, stock appreciation rights, phantom stock or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, in each case, other than (A) any such transaction among the Company and its Subsidiaries or among the Company’s wholly owned Subsidiaries or (B) any issuance of Shares pursuant to exercise or settlement of Company Equity Awards outstanding as of the date of this Agreement in accordance with their terms;
(iv) make any loans, advances or capital contributions to or investments in any Person (other than to the Company or any of its wholly owned Subsidiaries);
(v) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise with respect to any of its capital stock, except for dividends or other distributions paid by any wholly owned Subsidiary of the Company to the Company or to any other wholly owned Subsidiary of the Company;
(vi) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (except for (A) any such transaction by a wholly owned Subsidiary of the Company, (B) acquisitions of Shares in satisfaction of withholding obligations in respect of Company Equity Awards to the extent required by such Company Equity Awards, or (C) payment of the exercise price in respect of Company Options, in the case of clauses (B) and (C), outstanding as of the date of this Agreement pursuant to its terms or granted thereafter not in violation of this Agreement);
(vii) create, incur, assume or guarantee any Indebtedness for borrowed money or issue any debt securities or guarantees of the same or any other Indebtedness, except for (A) borrowings in the ordinary course of business under the Existing Credit Agreement, (B) guarantees or credit support provided by the Company or any of its Subsidiaries of the obligations of the Company or any of its Subsidiaries in the ordinary course of business to the extent such Indebtedness is in existence on the date of this Agreement or incurred in compliance with clause (A) of this Section 6.01(b)(vii), or (C) any Indebtedness solely among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries;
(viii) other than in accordance with the Company’s capital expenditure budget made available to Parent, incur or commit to any capital expenditure or expenditures, in any period, except capital expenditures in an amount not exceeding in the aggregate 120% of the amount included in such budget;
(ix) other than in the ordinary course of business consistent with past practicespractice, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (viiA) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement and disclosed to Agreement; provided, that no Contract of the other party type described in writing Section 5.01(k)(i)(N) or otherwise disclosed to the other party, Section 5.01(k)(i)(O) shall be entered into without the prior written consent of Parent, or (B) amend, modify or waive in any material respect or terminate any Material Contract in a manner adverse to the Company (other partythan expirations of any such Contract in accordance with its terms);
(x) make any material changes with respect to financial accounting policies or procedures, such consent not except as required by Law or by U.S. GAAP or official interpretations with respect thereto or by any Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization);
(xi) settle any Action for an amount in excess of $1 million individually or $5 million in the aggregate other than (A) any settlement or compromise where the amount paid or to be unreasonably withheld: paid by the Company or any of its Subsidiaries is fully covered by insurance coverage or retention amounts maintained by the Company or any of its Subsidiaries and (iB) settlements or compromises of any Action for an amount not materially in excess of the amount, if any, reflected or specifically reserved in the balance sheet (or the notes thereto) of the Company included in the Company Reports (with materiality measured relative to the amount so reflected or reserved, if any); provided that, in the case of each of the foregoing clauses (A) and (B), the settlement or compromise of such Action does not (x) impose any material restriction on the business or operations of the Company or any of its Subsidiaries (or Parent or any of its Subsidiaries after the Closing) and (y) include any non-monetary or injunctive relief, or the admission of wrongdoing, by the Company or any of its Subsidiaries or any of their respective officers or directors;
(xii) sell, pledgeassign, lease, license, sublicense or otherwise transfer or dispose of, abandon or permit to lapse, fail to take any action necessary to maintain, enforce or protect, or create or incur any Lien (other than Permitted Liens), on any material assets or property (including any Company Intellectual Property and Licensed Intellectual Property) except (A) pursuant to existing contracts or commitments (or refinancings thereof), (B) transactions among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, or (C) in the ordinary course of business consistent with past practice and in no event in an amount exceeding $1 million individually or encumber $5 million in the aggregate;
(xiii) except for such actions required by the terms of Benefit Plans as in effect on the date hereof: (A) increase the compensation or other benefits payable or provided to any assetsService Providers other than increases in base salary in the ordinary course of business for Service Providers with base salary of less than $300,000; (B) increase or accelerate or commit to accelerate the funding, except payment or vesting of compensation or benefits provided under any Benefit Plan, (C) grant or announce any cash, equity or equity-based, change of control, severance or retention award to any Service Provider; (D) establish, adopt, enter into terminate or amend (x) in any respect any Collective Bargaining Agreement or (y) in any material respect, any Benefit Plan (or any plan, program, agreement or arrangement that would be a Benefit Plan if in effect on the date hereof); (E) recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative of any employees of the Company or its Subsidiaries or (F) hire or terminate the employment of any employee of the Company whose annualized base compensation exceeds $300,000, other than (x) hiring to replace departed employees or (y) terminations for “cause” (as determined in the Company’s reasonable discretion); provided, however, that the foregoing clauses (A), (B), (C), and (D) shall not restrict the Company or its Subsidiaries from making available to newly hired employees or independent contractors (in the ordinary course of business; ), plans, agreements, benefits and compensation arrangements (iiincluding cash incentive grants, but excluding any equity-related incentives)) expend that are on substantially the same terms and conditions and have a value that is consistent with the past practice of making compensation and benefits available to newly hired employees or commit to expend any amounts independent contractors in respect similar positions or for employees or independent contractors with similar levels of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); responsibility;
(iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (ivxiv) acquire (by mergerany business, amalgamation, consolidation assets or acquisition capital stock of shares or assets) any corporation, partnership or other business organization Person or division thereof, orwhether in whole or in part (and whether by purchase of stock, except for investments in securities made purchase of assets, merger, consolidation or otherwise), other than the acquisition of assets from vendors or suppliers of the Company or any of its Subsidiaries in the ordinary course of business;
(xv) cancel, modify, amend or waive or terminate the Existing Credit Agreement, except for modifications or amendments to the Existing Credit Agreement that would not (A) impair the ability of Parent to obtain the Debt Financing on the Closing Date, (B) reduce the ability of the Company and its Subsidiaries to incur secured debt for borrowed money in the form of the Debt Financing on the Closing Date in any material respect, (C) reduce the ability of the Company and its Subsidiaries to make Restricted Payments (as defined in the Existing Credit Agreement) on the Closing Date in any investmentmaterial respect, either by purchase (D) impair the ability of shares the Merger to be consummated in compliance with any “merger” or securities“fundamental changes” covenant in the Existing Credit Agreement or (E) amend or modify the stated final maturity date of any indebtedness for borrowed money thereunder to be sooner than such maturity date as in effect as of the date hereof, contributions or amend or modify any such agreement to reduce the amount of capital the total lending commitments thereunder; implement or announce any permanent plant closings or permanent facility shutdown that would implicate the WARN Act;
(xvi) other than to subsidiaries), property transfer, or, except in the ordinary course of businessbusiness (A) make, purchase change or revoke any property or assets of any other individual or entitymaterial Tax election; (vB) incur change any indebtedness for borrowed money material Tax accounting period or method of Tax accounting, (C) file any material amended Tax Return, (D) settle or compromise any material claim related to Taxes, (E) enter into any material closing agreement or (F) surrender any right to claim a material Tax refund, offset or other material liability reduction in liability; or
(xvii) agree, authorize or obligation or issue commit to do any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, of the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Convey Health Solutions Holdings, Inc.), Merger Agreement (Convey Health Solutions Holdings, Inc.)
Interim Operations. During (a) Each of the period from Company and Parent covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement and ending on the earlier of prior to the Effective Time and (unless Parent or the termination of this AgreementCompany, except with the prior written consent of the Offeroras applicable, acting reasonablyshall otherwise approve in writing (which approval shall not be unreasonably withheld, conditioned or delayed)), and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants , as provided in any Contract in effect as of the date of this Agreement, or as required by applicable Law, the business of it and agrees that its business Subsidiaries shall be conducted only in the usual Ordinary Course and, to the extent consistent therewith, it and ordinary course of business consistent with past practices, and it its Subsidiaries shall use all their respective commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and preserve its businessgoodwill with Governmental Entities, assets customers, suppliers, licensors, licensees, distributors, creditors, lessors, employees and advantageous business relationshipsassociates. Caza shall consult with Without limiting the Offeror generality of and in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any furtherance of the following:
foregoing, from the date of this Agreement until the Effective Time, except as otherwise expressly: (i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (ii) contemplated by any Contract entered into prior to, concurrently with or after the date of this Agreement by Parent with respect to the Other Parent Transactions (as such Contract may be amended, supplemented or otherwise modified from time to time); (iii) required by applicable Law or the terms of any Contract in effect on the date of this Agreement, (iv) splitas approved in writing (which approval shall not be unreasonably withheld, combine conditioned or reclassify delayed) by the other Party; or (v) set forth in the corresponding subsection of Section 7.1 of the Company Disclosure Letter, as it relates to the Company and its Subsidiaries, or on Section 7.1 of the Parent Disclosure Letter, as it relates to Parent and its Subsidiaries, each Party, on its own account, shall not and shall not permit its Subsidiaries to:
(i) make any material change to the nature of its business and operations;
(ii) make any change to its Organizational Documents as in effect on the date of this Agreement in any manner that would reasonably be expected to prohibit, prevent or materially impede, hinder or delay the ability of such Party to satisfy any of the conditions to, or the consummation of, the Merger or the other Transactions;
(iii) (A) merge or consolidate itself or any of its securities; Subsidiaries with any other Person (vexpressly excluding, for the avoidance of doubt, any of the Other Parent Transactions), or (B) adopt a plan or agreement of liquidation complete or resolutions providing for the partial liquidation, dissolution, mergerrestructuring, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend recapitalization or other distribution reorganization, in each case, except (1) such transactions solely between or payment among, or solely involving, such Party and one or more of its wholly owned Subsidiaries, or a Subsidiary of such Party and one or more wholly owned Subsidiaries of such Subsidiary, (whether 2) as would not reasonably be expected to result in cash a Company Material Adverse Effect or Parent Material Adverse Effect, as applicable, or (3) as would not reasonably be expected to prohibit, prevent or materially impede, hinder or delay the ability of such Party to satisfy any of the conditions to, or the consummation of, the Merger or the other Transactions;
(iv) except as required by the Company Agreement, issue, sell, grant, transfer or authorize the issuance, sale or grant, or otherwise enter into any Contract with respect to the voting of, any of its partnership interests, limited liability company interests, shares of capital stock or propertyequity interests, as applicable (other than the issuance of partnership interests, limited liability company interests, shares of capital stock or equity interests (A) by its wholly owned Subsidiary to it or another of its wholly owned Subsidiaries or (B) in respect of its equity-based awards outstanding securities without the consent as of the Offerordate of this Agreement in accordance with their terms and, which consent may be withheld as applicable, the plan documents as in effect on the Offeror’s sole and absolute discretion; date of this Agreement), or (vii) enter securities convertible or exchangeable into or modify exercisable for any contractpartnership interests, agreementlimited liability company interests, commitment shares of capital stock or arrangement with respect equity interests, as applicable, or any options, warrants or other rights of any kind to acquire any partnership interests, limited liability company interests, shares of the foregoing except capital stock or equity interests, as otherwise permitted applicable, or contemplated by this Agreementsuch convertible or exchangeable securities;
(cv) except for transactions disclosed in the Disclosure Letterreclassify, Caza will notsplit, and will not permit any of its subsidiaries tocombine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its partnership interests, limited liability company interests, shares of capital stock or equity interests, as applicable, or securities convertible or exchangeable into or exercisable for any partnership interests, limited liability company interests, shares of capital stock or equity interests, as applicable;
(vi) waive, release, assign, settle or compromise any claim, action or proceeding, including any state or federal regulatory proceeding seeking damages or injunction or other equitable relief, which waiver, release, assignment, settlement or compromise would reasonably be expected to result in a Company Material Adverse Effect or Parent Material Adverse Effect, as applicable;
(vii) other than in the Ordinary Course, make, change or revoke any material Tax election, adopt or change any material Tax accounting method, file any material amended Tax Return, settle any material Tax claim, audit, assessment or dispute for an amount materially in excess of the amount reserved or accrued on such Party’s most recent consolidated balance sheet included in the Parent Reports or Company Reports, as applicable, or surrender any right to claim a refund of a material amount of Taxes;
(viii) make any material changes with respect to accounting policies, except as required by changes in GAAP;
(ix) make or declare any dividends or distributions to the holders of Common Units or Parent Common Stock, in each case, other than in the Ordinary Course; or
(x) agree, authorize or commit to do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior foregoing.
(b) Notwithstanding anything to the date of contrary in this Agreement and disclosed Agreement, a Party’s obligations under Section 7.1(a) to the other party in writing take an action or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: take an action, or to cause its Subsidiaries to take an action or not to take an action, shall, with respect to any Persons (and their respective Subsidiaries) controlled by such Party, or in which such Party otherwise has a voting interest, but that are not wholly owned Subsidiaries of such Party or have public equity holders, only apply (i) sellto the extent permitted by the organizational documents and governance arrangements of such entity and its subsidiaries, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); extent a Party is authorized and empowered to bind such entity and its subsidiaries and (iii) reorganize, amalgamate, merge to the extent permitted by the Party’s or otherwise continue with any other Person, corporation, partnership its Subsidiaries’ duties (fiduciary or other business organization whatsoever; (ivotherwise) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money such entity and its subsidiaries or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;its equity holders.
Appears in 2 contracts
Samples: Merger Agreement (Enbridge Energy Management L L C), Merger Agreement (Enbridge Inc)
Interim Operations. During the period from (a) From the date of execution of this Agreement and ending on the earlier of until the Effective Time and or the earlier termination of this Agreement, except (v) in connection with the prior written consent Carveout Transaction, (w) as set forth in Section 6.1(a) of the OfferorCompany Disclosure Letter, acting reasonably(x) as otherwise expressly contemplated or permitted by this Agreement (including Section 6.17), (y) to the extent consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned) or (z) as required by applicable Law, the Company shall, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants shall cause its Subsidiaries to, use reasonable best efforts to cause the business of it and agrees that its business shall Subsidiaries to be conducted only in the usual and ordinary course of business consistent with past practicesand it shall, and it shall cause its Subsidiaries to, use all commercially their respective reasonable best efforts to preserve their business organizations intact and maintain existing relations with Governmental Entities, customers, suppliers, distributors, employees and preserve its business, assets and advantageous business relationshipsassociates. Caza shall consult with Notwithstanding the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any generality of the followingforegoing, and subject to the exceptions set forth in clauses (w), (x), (y) and (z) of the immediately preceding sentence, the Company shall not and shall not permit its Subsidiaries to:
(i) amend its constating documents; (ii) issue (other than on exercise the certificate of incorporation, bylaws or surrender comparable governing documents of currently outstanding Caza Options), grant, sell the Company or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this AgreementSubsidiaries;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamationconsolidation, consolidation or acquisition of shares stock or assetsassets or otherwise) any corporation, partnership or other business organization or division any property or assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $5 million in any transaction or series of related transactions, other than acquisitions pursuant to Contracts in effect as of the date of this Agreement that have been made available to Parent prior to the date of this Agreement;
(iii) merge or consolidate with any other Person or restructure, reorganize or completely or partially liquidate the Company or any of its Subsidiaries;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any shares of capital stock or securities convertible, exchangeable or exercisable therefor (collectively, “Equity Interests”) of the Company or any of its Subsidiaries (including any Company Stock Options, Company Restricted Stock, Stock Appreciation Rights, Performance Share Units, Phantom Stock Units, Phantom Stock Appreciation Units, Time Stock Appreciation Rights or Performance Stock Appreciation Rights), except issuances or dispositions of (A) Shares pursuant to Company Stock Options, Stock Appreciation Rights or Performance Share Units outstanding on the date of this Agreement under the Company Plans, (B) Shares in connection with the matching of contributions under the Company’s 401(k) Plans, (C) Shares or options or rights to acquire Shares in connection with grants or awards of stock based compensation made in accordance with Section 6.1(a)(ix) hereof or (D) Equity Interests pursuant to the Rights Agreement;
(v) declare, set aside, establish a record date for, or pay any dividends on or make any other distributions (whether payable in cash, stock, property or a combination thereof) in respect of any of the capital stock, orother than any dividends from any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company;
(vi) reclassify, split, combine, subdivide, repurchase, redeem or otherwise acquire, directly or indirectly, any of the Equity Interests, except for investments (A) redemptions, purchases or acquisitions pursuant to the exercise or settlement of Company Stock Options, Stock Appreciation Rights, Performance Share Units, employee severance, retention, termination, change of control and other contractual rights existing on the date of this Agreement on the terms in effect on the date of this Agreement, including with respect to Company Restricted Stock or (B) pursuant to the Rights Agreement;
(vii) except as contemplated by the terms of this Agreement, including pursuant to Section 6.18, (A) incur, issue or modify in any material respect the terms of any Indebtedness for borrowed money, or assume, prepay, (except as required pursuant to the terms of any Indebtedness currently outstanding), defease, cancel, acquire, guarantee or endorse, or otherwise become responsible for (whether directly or indirectly, contingently or otherwise), the indebtedness of any Person, (B) issue or sell any debt securities made or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries or (C) assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person for borrowed money (in each case, for the avoidance of doubt, excluding trade payables, capitalized lease obligations, or obligations issued or assumed as consideration for services or property, including inventory), except for (1) Indebtedness incurred under the Second Amended and Restated Loan and Guaranty Agreement, dated August 16, 2011, by and among Collective Brands Financial, Inc., the Guarantors signatory thereto, the Lenders signatory thereto, Xxxxx Fargo Retail Finance, LLC and Citigroup Global Markets, Inc. (the “Revolving Credit Facility”), (2) letters of credit issued pursuant to the Revolving Credit Facility or otherwise issued in the ordinary course of business, (3) interest rate and other hedging arrangements on customary commercial terms in the ordinary course of business and (4) Indebtedness owed by any controlled Subsidiary of the Company to the Company; provided that the Company and its Subsidiaries shall not materially increase or decrease any intercompany payables or receivables except at or in connection with the Closing as contemplated by or required to accomplish the Carveout Transaction;
(viii) grant or incur any Lien material to the Company and its Subsidiaries, other than (A) Permitted Encumbrances; (B) pledges or deposits by the Company or any of its Subsidiaries in the ordinary course of business under workmen’s compensation Laws, unemployment insurance Laws or similar Laws; (C) good faith deposits in connection with Contracts (other than for the payment of Indebtedness) to which the Company or one of its Subsidiaries is a party, in each case, in the ordinary course of business; (D) Liens that may be incurred or granted pursuant to or in accordance with the terms of any Indebtedness in effect as of the date hereof, in connection with any Indebtedness permitted pursuant to Section 6.1(a)(vii) or (E) pursuant to licenses or sublicenses of Intellectual Property granted in the ordinary course of business;
(ix) except as required pursuant to agreements in effect prior to the date of this Agreement, or as otherwise required by applicable Law, (A) grant, pay or agree to pay any severance or termination payments or any benefits to any current or former director, officer or employee of the Company or any of its Subsidiaries, except in the case of employees who are not executive officers of the Company, in the ordinary course of business consistent with past practice, (B) increase the compensation or bonus (or grant, pay or agree to pay bonuses) to any current or former director, officer or employee of the Company or any of its Subsidiaries, except in the case of employees who are not executive officers of the Company, in the ordinary course of business consistent with past practice, (C) increase pensions or welfare benefits of any current or former director, officer or employee of the Company or any of its Subsidiaries, except in the case of employees who are not executive officers of the Company, in the ordinary course of business, (D) establish, adopt, terminate or materially amend any Company Plan or materially amend the terms of any Equity Awards, or enter into any new, or amend any existing change in control arrangements or retention, retirement or similar agreements with any new, current or former director, officer or employee of the Company or any of its Subsidiaries, (E) accelerate the vesting or payment of or take action to fund, any compensation payable or benefits to become payable or provided to any current or former director, officer or employee of the Company or any of its Subsidiaries, except as otherwise provided in this Agreement, (F) enter into any new, or amend any existing, employment agreements with any new, current or former director, officer or employee of the Company or any of its Subsidiaries except in the case of employees who are not executive officers of the Company, in the ordinary course of business consistent with past practice and with an annual base salary and incentive compensation opportunity not to exceed $175,000 or (G) grant or make any equity awards that may be settled in Shares, preferred shares, or any Equity Interest or any other securities of the Company or any of its Subsidiaries, or the value of which is linked directly or indirectly, in whole or in part, to the price or value of any Shares, preferred shares, Equity Interests or other Company securities or Subsidiary securities;
(x) other than in the ordinary course of business, (A) make or change any material Tax election, (B) change the Company’s or any Subsidiary of the Company’s method of accounting for Tax purposes, (C) file any material amended Tax Return, (D) settle, concede, compromise or abandon any material Tax claim or assessment, (E) surrender any right to a refund of material Taxes or (F) consent to any extension or waiver of the limitation period applicable to any claim or assessment with respect to material Taxes;
(xi) except as required by GAAP, a Governmental Entity or applicable Law, make any material changes to accounting policies or principles;
(xii) except in the ordinary course of business, make any investmentloans, either by purchase of shares advances or securitiescapital contributions to, contributions of capital (or investments in, any Person, other than (i) to subsidiariesor in the Company or to or in any direct or indirect controlled Subsidiary of the Company or (ii) to or in franchise partners or wholesale customers;
(xiii) (A) enter into any Contract that would have been a Company Material Contract pursuant to subsections (C), property transfer(D), or(E), (F), (G), (J), (K) or (M) of Section 5.1(q)(i) had it been entered into prior to the date of this Agreement, (B) terminate, materially amend or waive any material rights under any Company Material Contract or any Contract that would have been a Company Material Contract had it been entered into prior to the date of this Agreement, in each case in a manner materially adverse to the Company and its Subsidiaries, excluding any termination upon expiration of a term in accordance with the terms of such Company Material Contract, or (C) except in the ordinary course of business, purchase waive any property material default under, or assets of release, settle or compromise any other individual material claim against the Company or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation owing to the Company, under any Company Material Contract; provided, in each case, that the Company and its Subsidiaries shall be permitted to renew or issue replace any debt securities Company Material Contract with one or assumemore Contracts on substantially similar terms;
(xiv) transfer, guaranteesell, endorse lease, license, assign, mortgage, pledge, divest or otherwise as dispose of any entity or material assets, product lines, rights or businesses of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, in each case having a current value of $2,000,000 individually or $5,000,000 for all such transactions in the aggregate, other than (A) inventory, supplies and other assets in the ordinary course of business, (B) pursuant to Contracts in effect prior to the date of this Agreement that have been made available to Parent prior to the date of this Agreement or (C) pursuant to licenses or sublicenses of Intellectual Property granted in the ordinary course of business;
(xv) except for the expenditures contemplated by the capital budgets set forth in Section 6.1(a)(xv) of the Company Disclosure Letter or for expenditures required by Law or in response to casualty loss or property damage, make or authorize any capital expenditures;
(xvi) other than pursuant to Section 6.16, waive, release, settle or compromise any pending or threatened litigation, arbitration, claim (excluding ordinary course disputes with vendors in which no litigation or arbitration commences) or action against the Company or any of its Subsidiaries other than settlements or compromises of any litigation, arbitration, claim or action (A) where the amount paid in an accommodation become responsible forindividual settlement or compromise by the Company (and not including any amount paid by the Company’s insurance carriers or third parties) does not exceed $1,000,000 individually or $5,000,000 in the aggregate or (B) that would impose any material restrictions on the business or operations of the Company or its Subsidiaries; provided that the foregoing clause (A) will not restrict the Company’s ability to settle any ordinary course claim involving a settlement amount not in excess of $100,000;
(xvii) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries;
(xviii) fail to maintain in full force and effect material insurance policies covering the Company and its Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practice, unless the Company determines in its reasonable commercial judgment that the form or amount of such insurance should be modified; or
(xix) agree, authorize or commit to do any of the foregoing actions or enter into any letter of intent (binding or non-binding) or similar agreement or arrangement with respect to any of the foregoing actions.
(b) Neither Parent nor Merger Sub shall knowingly take or permit any of their Affiliates to take any action that could reasonably be expected to prevent or materially impede the consummation of the Merger, the obligation Carveout Transaction or the other transactions contemplated by this Agreement and the Carveout Transaction Agreement.
(c) Nothing contained in this Agreement is intended to give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time, and nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Affiliates’ operations. Prior to the Effective Time, each of any other individual or entityParent and the Company shall exercise, or make any loans or advances;consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 2 contracts
Samples: Merger Agreement (Wolverine World Wide Inc /De/), Merger Agreement (Collective Brands, Inc.)
Interim Operations. During (a) Each of the period Company and EFIH covenants and agrees as to itself and each of its Subsidiaries (other than the Oncor Entities, subject to Section 6.23), and any entities that are to be, and actually are, contributed to Reorganized TCEH pursuant to the Plan of Reorganization) that, except (i) as otherwise specifically permitted by the provisions of this Agreement, (ii) as Parent may approve in writing (such approval, not to be unreasonably withheld, delayed or conditioned), (iii) as is required by any applicable Law or any Order (as defined below) of any Governmental Entity, (iv) as set forth in Section 6.1(a) of the Company Disclosure Letter, (v) as required by the Bankruptcy Court or the Bankruptcy Code, and (vi) as required pursuant to the Plan of Reorganization, in each case after the date hereof and prior to the earlier of the Termination Date (as defined below) and the First Closing Date, (w) the businesses of the Company, EFIH and their respective Subsidiaries (other than the Oncor Entities, subject to Section 6.23) shall be conducted in the ordinary course of business in all material respects and in accordance with the Bankruptcy Code and the Orders of the Bankruptcy Court and (x) each of the Company, EFIH and their respective Subsidiaries (other than the Oncor Entities, subject to Section 6.23) shall use its reasonable best efforts to preserve intact its business organization and relationships with employees, customers, suppliers and Governmental Entities. Without limiting the generality of the preceding provisions of this Section 6.1(a), and in furtherance thereof, from the date of execution of this Agreement and ending on until the earlier of the Effective Time Termination Date and the termination First Closing Date, except (A) as otherwise specifically permitted by the provisions of this Agreement, except with the prior written consent (B) as Parent may approve in writing (such approval, not to be unreasonably withheld, delayed or conditioned), (C) as is required by any applicable Law or any Order of any Governmental Entity, (D) as set forth in Section 6.1(a) of the OfferorCompany Disclosure Letter, acting reasonably(E) as required by the Bankruptcy Court or the Bankruptcy Code, or (F) as required pursuant to the Plan of Reorganization, each of the Company and EFIH will not and will not permit any of its respective Subsidiaries (other than the Oncor Entities, subject to Section 6.23, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreementany entities that are to be, and actually are, contributed to Reorganized TCEH pursuant to the Plan of Reorganization) to:
(i) adopt any change in its certificate of formation or bylaws or other applicable governing instruments;
(ii) merge or consolidate with any other Person;
(iii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization other than pursuant to the Plan of Reorganization;
(iv) make any acquisition of any assets or Person for a purchase price in excess of $1,000,000, in the aggregate, unless such acquisition would be permissible under Section 6.1(a)(xi) below;
(v) issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or other equity interests (other than (A) the issuance of shares of Common Stock upon the settlement of awards outstanding as of the date hereof under the Company Stock Plan (and dividend equivalents thereon, if applicable), or (B) the issuance of equity interests by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other equity interests or such convertible or exchangeable securities;
(vi) make any loans, advances or capital contributions to or investments in any Person in excess of $1,000,000, in the aggregate (other than loans, advances or capital contributions to or investments in the Company or any direct or indirect wholly owned Subsidiary of the Company);
(vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or other equity interest (except for dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary of the Company) or enter into any agreement with respect to the voting of its capital stock;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire or offer to repurchase, redeem or otherwise acquire, directly or indirectly, any of its capital stock or equity interests or securities convertible or exchangeable into or exercisable for any shares of its capital stock or other equity interests, or any options, warrants or other rights of any kind to acquire any such capital stock or other equity interests or such convertible or exchangeable securities;
(ix) repurchase, redeem, defease, cancel, prepay, forgive, issue, sell, incur, or announce, offer, place, or arrange for the incurrence of, or otherwise acquire any indebtedness for borrowed money or any debt securities or rights to acquire debt securities, of the Company or any of its Subsidiaries, or assume, guarantee or otherwise become responsible for such indebtedness of another Person (other than a wholly owned Subsidiary of the Company), except for indebtedness for borrowed money (A) incurred or repaid under the EFIH First Lien DIP (1) in the ordinary course of business or (2) in connection with the refinancing thereof or (B) incurred by drawing under outstanding letters of credit in the ordinary course of business;
(x) (A) grant to any Employee any increase in compensation or benefits other than increases in the ordinary course of business, (B) grant to any Employee any increase in change in control, severance or termination pay, (C) establish, adopt, enter into, amend in any material respect or terminate any Assumed Plan (or any plan or agreement that would be a Benefit Plan if in existence on the date hereof) in the case of a Contributed Plan, other than in the ordinary course of business, (D) take any action to accelerate the time of vesting, funding or payment of any compensation or benefits under any Assumed Plan, (E) grant any new awards, or any outstanding awards, under any Assumed Plan, or (F) enter into or amend any collective bargaining agreement or other agreement with a labor union, works council or similar organization, except in the case of the foregoing clauses (A) through (F) for actions required pursuant to the terms of any Benefit Plan, or in accordance with the terms and conditions of this Agreement or applicable Law;
(xi) make or authorize any capital expenditure in an amount in excess of $1,000,000, in the aggregate, during any 12-month period;
(xii) make any material changes with respect to its financial accounting methods, principles, policies, practices or procedures, except as required by Law or by changes in GAAP;
(xiii) other than with respect to (1) audits or other Tax proceedings disclosed in Section 6.1(a)(xiii) of the Company Disclosure Letter or (2) any action to accelerate the recognition of cancellation of indebtedness income that previously has been deferred pursuant to Section 108(i) of the Code, in each case, only and to the extent the foregoing would not materially adversely affect Parent, make (excluding any elections made (a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business or (b) under Section 168(k) of the Code) or change any material Tax election, change any material method of Tax accounting, settle or compromise any material Tax liability, claim or assessment or agree to an extension or waiver of the limitation period to any material Tax claim or assessment, grant any power of attorney with respect to material Taxes, enter into any closing agreement with respect to any material Tax or refund or amend any material Tax Return, in each case, other than as required by Law;
(xiv) waive, release, assign, settle or compromise any pending or threatened claim, action, suit or proceeding against the Company or any of its Subsidiaries (A) for an amount in excess of $10,000,000, or (B) that entails the acceptance or imposition of any material restrictions on the business or operations of the Company or its Subsidiaries;
(xv) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Company or its Subsidiaries (including capital stock of any of its Subsidiaries) with a fair market value in excess of $1,000,000, in the aggregate, other than sales of obsolete goods or equipment or the licensing or sublicensing of, Intellectual Property in the ordinary course of business consistent with past practicespractice or pursuant to Contracts in effect prior to the date hereof that have been made available to the Purchasers;
(xvi) other than pursuant to the Plan of Reorganization, and it shall use all commercially reasonable efforts (A) enter into, terminate (other than at the end of a term), renew or materially extend or amend any Company Material Contract or Contract that, if in effect on the date hereof, would be a Company Material Contract; or (B) waive any material default under, or release, settle or compromise any material claim against the Company or any of its Subsidiaries or liability or obligation owing to the Company or any of its Subsidiaries under any Company Material Contract;
(xvii) enter into any Contract that contains a change of control or similar provision that would require a payment to any Person counterparty thereto in connection with the consummation of the Transactions that would not otherwise be due;
(xviii) fail to maintain in full force and preserve effect material insurance policies covering the Company and its businessSubsidiaries and their respective properties, assets and advantageous business relationships. Caza shall consult businesses in a form and amount consistent with past practice unless the Offeror Company determines, in respect its reasonable commercial judgment, that the form or amount of its ongoing business and affairs and keep such insurance should be modified; or
(xix) agree, authorize or commit to do any of the Offeror apprised of all material developments relating thereto;foregoing.
(b) Caza Notwithstanding anything in Section 6.1(a) to the contrary, in order to prevent the occurrence of, or mitigate the existence of, an emergency situation involving endangerment of life, human health, safety, the Environment or material property, equipment or other assets, the Company and EFIH may take commercially reasonable actions that would otherwise be prohibited pursuant to Section 6.1(a); provided, however, that the Company and EFIH shall notprovide Parent with notice of such emergency situation as soon as reasonably practicable after obtaining Knowledge thereof.
(c) Except (i) for actions required under the terms of this Agreement, (ii) for actions expressly permitted under Section 6.2 or (iii) as required by the Bankruptcy Court or the Bankruptcy Code, no party hereto shall intentionally take or permit any of its controlled Affiliates to take any action that is reasonably likely to prevent in any material respect the consummation of any of the Transactions.
(d) Nothing contained in this Agreement is intended to give either Purchaser, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase control or otherwise acquire any of direct the Company’s or its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into Subsidiaries’ operations prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;Effective Time.
Appears in 2 contracts
Samples: Purchase Agreement (Ovation Acquisition I, L.L.C.), Purchase Agreement (Energy Future Competitive Holdings Co LLC)
Interim Operations. During Except (i) as required by this Agreement, (ii) as set forth in Section 6.1 of the period Company Disclosure Schedule, (iii) as required by applicable Law, or (iv) as consented to in writing by Parent, which consent will not be unreasonably withheld, conditioned or delayed, the Company covenants that, from the date of execution of this Agreement and ending on until the earlier of the Effective Time and the termination of this Agreement, except Agreement in accordance with its terms and the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this AgreementEffective Time:
(a) Caza covenants the Company and agrees that each of its Subsidiaries will (i) conduct business shall be conducted only in the usual Ordinary Course and ordinary course of business (ii) to the extent consistent with past practicestherewith, and it shall use all commercially reasonable efforts to (A) preserve intact its current business organization, (B) keep available the services of key employees and (C) maintain its existing relationships with its customers and preserve its business, assets and advantageous business relationships. Caza shall consult with suppliers; provided that no action or failure to take action by the Offeror in respect Company or any of its ongoing business and affairs and keep the Offeror apprised Subsidiaries with respect to matters specifically addressed by any provision of all material developments relating theretoSection 6.1(b) through (s) will constitute a breach under this Section 6.1(a) unless such action or failure to take action would constitute a breach of such provision of Section 6.1(b) through (s), as applicable;
(b) Caza shall notthe Company will not amend its Certificate of Incorporation or Bylaws, directly or indirectly, do or the Company will not permit any of its Subsidiaries to occur amend any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender organizational documents of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securitiesSubsidiaries, except as permitted pursuant to and none of the terms thereof Company or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay Subsidiaries will otherwise take any dividend or other distribution or payment (whether in cash shares or property) in respect action to exempt any Person from any provision of its outstanding securities without the consent Certificate of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; Incorporation or (vii) enter into Bylaws or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreementorganizational documents of any of its Subsidiaries;
(c) except for transactions disclosed in the Disclosure Letter, Caza Company will not, and will not permit any of its subsidiaries Subsidiaries to, authorize or pay any dividends on or make any distribution with respect to its outstanding Shares or other securities (whether in cash, assets, stock or other securities of the Company or its Subsidiaries), except dividends and distributions made by a direct or indirect wholly owned Subsidiary of the Company to its parent, or directly or indirectlyindirectly redeem, do purchase or otherwise acquire any Shares or other securities;
(d) except for (i) transactions exclusively among the Company and its direct or indirect wholly owned Subsidiaries or among the Company’s direct or indirect wholly owned Subsidiaries, (ii) issuances of Shares in respect of any exercise of Company Stock Options or settlement of Company Units or Company Stock-Based Awards outstanding on the date of this Agreement, in each case in accordance with the terms of the applicable award agreement as in effect as of the date of this Agreement, and (iii) issuance of the Committed Shares, the Company will not, and will not permit any of its Subsidiaries to, issue, sell, pledge, dispose of or encumber (other than Permitted Liens), or authorize the issuance, sale, pledge, disposition or encumbrance (other than Permitted Liens) of, any Shares or any securities convertible into or exchangeable for Shares, or any rights, warrants or options to acquire or with respect to Shares or convertible or exchangeable securities, or split, combine or reclassify the Shares or any outstanding capital stock of any of the following other than Company’s Subsidiaries;
(e) except to the extent required by Contracts in existence as contemplated by of the date of this Agreement or by Company Benefit Plans set forth on Section 4.10(a) of the Company Disclosure Schedule, the Company will not and will not permit any of its Subsidiaries to:
(i) increase in any manner the compensation and benefits (including severance, termination, change-in-control, incentive and retention compensation or benefits) of any current or former directors, officers or employees of the Company and its Subsidiaries; provided, that the Company may issue the Committed Shares to the persons entitled thereto;
(ii) grant any Company Stock Awards or other equity or equity-based awards (other than the Committed Shares), or amend the terms of any Company Stock Awards outstanding as of the date of this Agreement;
(iii) enter into, amend (other than de minimis administrative amendments to Company Benefit Plans that do not increase the level of benefits or cost to the Company or any of its Subsidiaries of maintaining the applicable compensation or benefit program, policy, arrangement or agreement), adopt, implement or otherwise commit itself to any Company Benefit Plan or other compensation or benefit plan, program, policy or Contract that would be a Company Benefit Plan if in effect as of the date of this Agreement, including any pension, retirement, profit-sharing, bonus, collective bargaining or other employee benefit or welfare benefit plan, policy, arrangement or agreement or employment or consulting agreement with or for the benefit of any employee, director, consultant, independent contractor or service provider of the Company or its Subsidiaries;
(iv) other than pursuant to commitments the terms of this Agreement, take any action to amend, waive or accelerate the vesting of, or the lapsing of restrictions or performance criteria with respect to, any Company Benefit Plan or Company Stock Option, Company Stock-Based Award or Company Unit or otherwise accelerate any rights or benefits, or make any determinations under any Company Benefit Plan;
(v) establish or fund (or provide any funding for) any rabbi trust or other funding arrangement, including in respect of any Company Benefit Plan;
(vi) hire or promote any person at the level of Director or above or terminate (other than for cause) the employment or services of any employee at the level of Director or above; or
(vii) enter into, establish or adopt any collective bargaining or similar agreement with any union, works council or labor organization;
(f) the Company will not, and will not permit any of its Subsidiaries to, make any loans or advances to any of its directors and executive officers (other than travel and payroll advances in the Ordinary Course in type and amount) or make any change in its existing borrowing or lending arrangements for or on behalf of any such Persons;
(g) the Company will not, and will not permit any of its Subsidiaries to, (i) incur, assume, guarantee or prepay any indebtedness for borrowed money (directly, contingently or otherwise), except for (A) any indebtedness for borrowed money among the Company and its direct or indirect wholly owned Subsidiaries or among the Company’s direct or indirect wholly owned Subsidiaries, (B) indebtedness for borrowed money in an amount not to exceed $5,000,000 in aggregate principal amount, and (C) letters of credit issued in the Ordinary Course or (ii) incur any Lien securing indebtedness for borrowed money, except for Liens securing borrowing expressly permitted by the foregoing clause (i);
(h) the Company will not, and will not permit any of its Subsidiaries to, change in any material respect any of the accounting methods, principles or practices used by it unless required by or advisable under a change in GAAP or any other accounting standard used by any such Subsidiary as of the date of this Agreement;
(i) other than in the Ordinary Course, the Company will not, and will not permit any of its Subsidiaries to (A) make, change or revoke any material income Tax election, (B) file any material amended income Tax Return, or (C) settle or compromise any material liability for income Taxes or surrender any claim for a refund of a material amount of income Taxes, other than in the case of clauses (B) and (C) hereof in respect of any income Taxes that have been identified in the reserves for income Taxes in the Company’s GAAP financial statements;
(j) the Company will not, and will not permit any of its Subsidiaries to, acquire, except in respect of any mergers, consolidations, business combinations among the Company and its direct or indirect wholly owned Subsidiaries or among the Company’s direct or indirect wholly owned Subsidiaries, including by merger, consolidation or acquisition of stock or assets, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets in connection with acquisitions or investments, other than the purchase of supplies, equipment and products in the Ordinary Course;
(k) the Company will not, and will not permit any of its Subsidiaries to, renew, extend, terminate, amend in any material respect or waive any of its material rights under any Company Material Contract of the type described in Section 4.17(a)(iv), (v), (vi), (viii), (xvi) or (xvii) or enter into any Contract that would constitute a Company Material Contract of the type described in Section 4.17(a)(iv), (v), (vi), (viii), (xvi) or (xvii) if entered into prior to the date of this Agreement Agreement, and disclosed except in the Ordinary Course, the Company will not, and will not permit any of its Subsidiaries to, renew, extend, terminate, amend in any material respect or waive any of its material rights under any Company Material Contract (other than of the type described in Section 4.17(a)(iv), (v), (vi), (viii), (xvi) or (xvii)) or enter into any Contract that would constitute a Company Material Contract (other than of the type described in Section 4.17(a)(iv), (v), (vi), (viii), (xvi) or (xvii)) if entered into prior to the date of this Agreement;
(l) the Company will not, and will not permit any of its Subsidiaries to, make or authorize any capital expenditure, other party than capital expenditures in writing the Ordinary Course or that do not otherwise exceed the Company’s existing capital budget by more than $1,000,000 in the aggregate;
(m) the Company will not, and will not permit any of its Subsidiaries to, (A) sell, transfer, mortgage, encumber or otherwise disclosed dispose of any of its tangible assets, tangible properties or businesses, except for sales, transfers, mortgages, encumbrances or other dispositions in the Ordinary Course (including dispositions of inventory or of obsolete equipment in the Ordinary Course) or pursuant to an existing contract set forth in Section 6.1(m) of the Company Disclosure Schedule, or (B) cancel, release or assign any indebtedness of any person owed to it or any claims held by it against any Person other than the release of claims held by it in the Ordinary Course;
(n) except in the Ordinary Course, the Company will not, and will not permit any of its Subsidiaries to (i) abandon, disclaim, dedicate to the public, sell, assign or grant any security interest in, to or under any Company-Owned IP, including failing to perform or cause to be performed all applicable filings, recordings and other partyacts, without or to pay or cause to be paid all required fees and Taxes, to maintain and protect its interest in the prior consent Company-Owned IP, or (ii) grant to any third party any license, or enter into any covenant not to xxx, with respect to any Company-Owned IP;
(o) the Company will not, and will not permit any of its Subsidiaries to, commence, settle or compromise any litigation, suit, action or proceeding, except for commencements, settlements or compromises that (i) involve monetary remedies with a value not in excess of $1,000,000, with respect to any individual litigation, suit, action or proceeding or $5,000,000 in the aggregate; provided that the Company will notify Parent of commencements, settlements or compromises that involve monetary remedies with a value in excess of $500,000, (ii) do not involve any material equitable remedy or impose any material restriction on its business or the business of its Subsidiaries, and (iii) do not relate to any litigation by the Company’s stockholders in connection with this Agreement or the transactions contemplated hereby;
(p) the Company will not, and will not permit any of its Subsidiaries to, materially reduce the amount of insurance coverage or fail to renew any material existing insurance policies;
(q) the Company will not, and will not permit any of its Subsidiaries to, amend any franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals, clearances, permissions, qualifications or registrations or orders of any Governmental Entity in a manner that adversely impacts its ability to conduct its business in any material respect, or (ii) other than in the Ordinary Course, terminate or allow to lapse, any such franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals, clearances, permissions, qualifications or registrations or orders;
(r) the Company will not, and will not permit any of its Subsidiaries to, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than this Agreement); and
(s) the Company will not, and will not permit any of its Subsidiaries to, agree to do, or make any commitment to do, any of the other party, foregoing. The Company may request consent from Parent (such consent not to be unreasonably withheld: , conditioned or delayed) with respect to the actions proscribed in this Section 6.1 by delivering written notice. The Company, on the one hand, and Parent and Merger Sub, on the other hand, acknowledge and agree that (i) sellnothing contained in this Agreement is intended to give Parent or Merger Sub, pledgedirectly or indirectly, dispose the right to control or direct the operations of the Company or encumber any assetsof its Subsidiaries prior to the Effective Time, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject prior to the covenants Effective Time, the Company will exercise, consistent with the terms and conditions of this Agreement, control and supervision over its and its Subsidiaries’ operations, (iii) notwithstanding anything to the contrary in this Agreement, no consent of Parent will be required with respect to any matter set forth in this Section 7.1(c); (iii) reorganize6.1 or elsewhere in this Agreement to the extent the requirement of such consent would reasonably be expected to be a violation of applicable Law, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; and (iv) acquire (by mergernotwithstanding anything to the contrary in this Agreement, amalgamationParent’s consent will not be required for the Company to take, consolidation or acquisition fail to take, any action set forth in Section 6.1(a), Section 6.1(e)(i) or Section 6.1(l) if the Company determines in good faith that such action or inaction is reasonably necessary in light of shares or assets) any corporationthen-current operating conditions and developments with respect to the business of the Company and its Subsidiaries as a result of COVID-19; provided, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course case of business, make any investment, either by purchase of shares or securities, contributions of capital this clause (other than to subsidiariesiv), property transfer, or, except in that the ordinary course of business, purchase Company will provide reasonable advance notice to and consult with Parent prior to any property such action or assets of any other individual inaction and will keep Parent fully informed on a current basis with respect to such action or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;inaction.
Appears in 2 contracts
Samples: Merger Agreement (Home Depot, Inc.), Merger Agreement (HD Supply Holdings, Inc.)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing, except with the prior written consent of the Offeror, acting reasonablysuch approval not to be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of the Company Disclosure Letter) and except as required by law or expressly permitted or specifically applicable Law, the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practice and, to the extent consistent therewith, it and its Subsidiaries shall use their respective reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, employees and business associates. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (i) as otherwise contemplated by this Agreement, (ii) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed), (iii) as is required by applicable Law or any Governmental Entity or (iv) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(aA) Caza covenants and agrees that adopt or propose any change in its certificate of incorporation or by-laws or other applicable governing instruments or other similar organizational documents of any of its Subsidiaries;
(B) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly owned Subsidiaries of the Company, or restructure, reorganize or completely or partially liquidate;
(C) acquire assets outside of the ordinary course of business shall be conducted only from any other Person or with a value or purchase price in the usual aggregate in excess of $5 million in any transaction or series of related transactions;
(D) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than (1) the issuance of Shares upon the exercise of Company Options set forth in Section 5.1(b)(i) of the Company Disclosure Letter in accordance with the terms of the Stock Plans or (2) the issuance of shares by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options (including Company Options), warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(E) make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company) in excess of $4 million in the aggregate;
(F) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends or other distributions by any direct or indirect wholly owned Subsidiary to the Company or to any wholly owned Subsidiary of the Company) or enter into any agreement with respect to the voting of its capital stock;
(G) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than the acquisition of any Shares tendered by Employees in connection with the exercise of Company Options set forth in Section 5.1(b)(ii) of the Company Disclosure Letter in accordance with the terms of the Stock Plans);
(H) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person (other than a wholly owned Subsidiary of the Company), or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for borrowings and letter of credits issued under the Company’s existing revolving credit facility set forth in Section 5.1(b)(ii) of the Company Disclosure Letter;
(I) except as set forth in the capital budgets set forth in Section 6.1(a)(I) of the Company Disclosure Letter, make or authorize any capital expenditure in excess of $2 million in the aggregate;
(J) make any material changes with respect to accounting policies or procedures, except as required by changes in GAAP or Law or by a Governmental Entity;
(K) settle, release, waive or compromise any pending or threatened suit, action, claim, arbitration, investigation or litigation or other proceedings (i) for an amount in excess of $1 million or any obligation or liability of the Company in excess of such amount (ii) entailing obligations that would impose any material restrictions on the business or operations of the Company or any of its Subsidiaries or (iii) that is brought by any current, former or purported holder of any capital stock or debt securities of the Company or any of its Subsidiaries relating to the transactions contemplated by this Agreement;
(L) make or change any material Tax election or tax accounting method, settle or compromise any material Tax liability other than in the ordinary course of business consistent with past practicespractice, or agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes other than ordinary course state and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretolocal Tax inquiries;
(bM) Caza shall nottransfer, directly sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or indirectlyotherwise dispose of any assets, do product lines or permit to occur any businesses of the following:Company or its Subsidiaries, other than inventory, supplies and other assets in the ordinary course of business consistent with past practice;
(iN) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or expressly contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or required pursuant to commitments entered into Benefit Plans in effect prior to the date of this Agreement and disclosed listed on the Company’s Disclosure Letter, or as otherwise required by applicable Law, (1) grant or provide for any severance or termination payments or benefits to the other party in writing any director or otherwise disclosed to the other party, without the prior consent officer of the other partyCompany (the “Elected Officers”) or Employee, such consent except, in the case of employees who are not to be unreasonably withheld: (i) sellElected Officers, pledge, dispose of or encumber any assets, except in the ordinary course of business; business consistent with past practice, (ii2) expend increase the compensation, perquisites or commit benefits payable to expend any amounts Employee, except, in respect the case of capital expensesEmployees who are not Elected Officers of the Company, excluding certain expenditures which increases in the ordinary course of business consistent with past practice, (3) grant any equity or equity-based awards that may be agreed tosettled in Shares, from time to timepreferred shares or any other securities of the Company or any of its Subsidiaries or the value of which is linked directly or indirectly, by the Offeror in writingwhole or in part, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganizeprice or value of any Shares, amalgamate, merge or otherwise continue with any other Person, corporation, partnership preferred shares or other business organization whatsoever; Company securities or Subsidiary securities, (iv4) acquire accelerate the vesting or payment of any compensation payable or benefits provided or to become payable or provided to any Employee or (by merger5) terminate or materially amend any existing, amalgamationor adopt any new, consolidation or acquisition of shares or assets) any corporation, partnership or Benefit Plan (other business organization or division thereof, or, except for investments in securities than changes made in the ordinary course of businessbusiness consistent with past practice or as may be necessary to comply with applicable Laws, make in either case that do not materially increase the costs of any investmentsuch Benefit Plans);
(O) except as required by applicable Laws, either by purchase enter into, amend or extend any material collective bargaining agreement or other labor agreement;
(P) except to the extent necessary to take any actions that the Company is otherwise permitted to take pursuant to Section 6.2 (and in such case only in accordance with the terms of shares Section 6.2), take any action to render inapplicable, or securitiesto exempt any third party from, contributions any standstill arrangements or the provisions of capital any Takeover Statutes;
(Q) enter into, amend, cancel or modify any Material Contract or any Contract that would be a Material Contract if in effect on the date of this Agreement;
(R) cancel any debts or waive any claims or rights of substantial value (including the cancellation, compromise, release or assignment of any indebtedness owed to, or claims held by, the Company or any of its Subsidiaries), except for cancellations made or waivers granted with respect to claims other than to subsidiaries), property transfer, or, except indebtedness in the ordinary course of businessbusiness consistent with past practice which, purchase in the aggregate, are not material or for claims other than indebtedness which are cancelled or waived in connection with the settlement of the actions referred to in, and to the extent permitted by, clause (K) above;
(S) fail to maintain in full force and effect the material insurance policies covering the Company and its Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practices;
(T) enter into any property agreement with a New Jersey Governmental Entity pursuant to the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6, et seq. (“ISRA”) that could reasonably be expected to (i) require the Company to establish a financial assurance exceeding $1 million or assets (ii) otherwise result in investigation or remediation liabilities of the Company exceeding $1 million in the aggregate; or
(U) except as provided in Section 6.2 and Section 8.3(a), agree, authorize or commit to do any of the foregoing or any action which would result in any of the conditions to the Merger set forth in Article VII not being satisfied or that would reasonably be expected to result in a Company Material Adverse Effect.
(b) The Company shall consult with Parent reasonably in advance of any other individual decision to (i) hire any “Executive Officer” (as such term is defined in Rule 3b-7 promulgated under the Exchange Act), promote any existing Executive Officer to a more senior position or entityotherwise appoint or promote any current director, employee, independent contractor or consultant to an Executive Officer position or (ii) adopt any material modification or material deviation from the Company’s annual operating plan, as previously provided to Parent; and in each case shall consider in good faith the reasonable recommendations of Parent in connection therewith.
(vc) incur The Company shall, except as prohibited by applicable Law or as would jeopardize attorney-client privilege (but in such event, the Company will use its commercially reasonable efforts to keep Parent fully informed), keep Parent informed, on a current basis, of any indebtedness for borrowed money material events, discussions, notices or changes with respect to any criminal or material regulatory investigation or action involving the Company or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (ReAble Therapeutics Finance LLC), Merger Agreement (Djo Inc)
Interim Operations. During the period (a) The Company shall, and shall cause each of its Subsidiaries to, from and after the date of execution of this Agreement and ending on hereof until the earlier of the Effective Time Closing and the termination of this Agreement (unless Purchaser shall otherwise approve in writing), and except as otherwise expressly required by this Agreement or as required by a Governmental Entity or applicable Law, conduct its business in the ordinary course and, to the extent consistent therewith, shall use and cause each of its Subsidiaries to use their respective commercially reasonable efforts to maintain its and its Subsidiaries’ relations and goodwill with Governmental Entities, clients, suppliers, licensors, licensees, distributors, creditors, lessors, employees and agents.
(b) Without limiting the generality of and in furtherance of the foregoing sentence, from and after the date hereof until the earlier of the Closing and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise expressly required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its businessrequired by a Governmental Entity or applicable Law, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to expressly required by the terms thereof or as permitted of any Company Material Contract in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into effect prior to the date of this Agreement (correct and disclosed complete copies of which have been made available to Purchaser) or entered into following the other party date of this Agreement in accordance with the terms of this Section 3.1, as approved in writing or otherwise disclosed to the other party, without the prior consent of the other party, by Purchaser (such consent approval not to be unreasonably withheld: , conditioned or delayed) or set forth in Section 3.1(b) of the Company Disclosure Schedule, the Company shall not and shall cause its Subsidiaries not to:
(i1) adopt or propose any change in its Organizational Documents (other than to correct scrivener’s errors or immaterial or ministerial amendments);
(2) merge or consolidate with any other person, except for any such transactions solely among wholly owned Subsidiaries of the Company or in connection with any acquisition permitted by clause (3) below, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material restrictions on its properties, assets, operations or businesses;
(3) acquire assets or equity interests outside of the ordinary course of business from any other person with a value or purchase price in the aggregate in excess of $10,000,000; provided, however, that the Company shall provide notification to Purchaser in the event that the Company or any of its Subsidiaries acquires assets or equity interests outside of the ordinary course of business from any other person with a value or purchase price in the aggregate in excess of $1,000,000;
(4) issue, sell, pledge, dispose of of, grant, transfer, lease, license, guarantee, encumber, or encumber otherwise enter into any assetscontract or other agreement, except in understanding or arrangement (whether oral or written) with respect to the ordinary course of business; (ii) expend or commit to expend voting of, any amounts in respect shares of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by stock of the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge Company or otherwise continue with any other Person, corporation, partnership capital stock or other business organization whatsoever; (iv) acquire (by mergerequity interests of any of its Subsidiaries, amalgamation, consolidation securities convertible or acquisition exchangeable into or exercisable for any such shares of shares or assets) any corporation, partnership capital stock or other business organization equity interests, or division thereofany options, or, except for investments in securities made in the ordinary course warrants or other rights of business, make any investment, either by purchase of kind to acquire any such shares or securities, contributions of capital stock, other equity interests or such convertible or exchangeable securities (other than (A) the issuance of shares of such capital stock, other equity securities or convertible or exchangeable securities (I) by a wholly owned Subsidiary of the Company to subsidiariesthe Company or another wholly owned Subsidiary of the Company, (II) to the Other Investor (provided that notice shall be provided to Purchaser of any such issuance no less than five business days prior to such issuance), property transfer(III) pursuant to any present employee, ordirector or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries or any present employee agreements or arrangements or programs, including the issuance of performance shares, restricted shares, options or similar securities in an aggregate amount and on the terms separately disclosed to Purchaser on February 20, 2024, (IV) in connection with any acquisition permitted by clause (3) above, or (V) in connection with any earn-out, deferred or contingent payment obligations required by the terms of any acquisition contract in effect prior to the date of this Agreement or entered into following the date of this Agreement in accordance with the terms of this Section 3.1 or (B) proxies or voting agreements solicited by or on behalf of the Company in connection with the 20% Approval);
(5) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire or offer to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other equity interests or securities convertible or exchangeable into or exercisable for any shares of its capital stock or other equity interests, in each case except in connection with tax withholding obligations of the ordinary course of business, purchase any property or assets of any other individual or entity; Company;
(v6) incur any indebtedness for borrowed money in excess of $10,000,000 in the aggregate, except for (A) indebtedness in replacement of existing indebtedness for borrowed money on terms substantially consistent with or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, more favorable to the obligation of any other individual or entity, or make any loans or advances;Company than the indebtedness being replaced,
Appears in 2 contracts
Samples: Investment Agreement (AlTi Global, Inc.), Investment Agreement (AlTi Global, Inc.)
Interim Operations. During the period from the date of execution this Agreement until the Acceptance Date (or until termination of this Agreement and ending on in accordance with Article 7 hereof (the earlier of the Effective Time and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably“Termination Date”)), and except (i) as otherwise may be required by law applicable Law, (ii) as may be agreed in writing by Parent (which consent, or expressly permitted or specifically contemplated lack thereof, may not be unreasonably delayed), (iii) as may be required by this AgreementAgreement or (iv) as set forth in Section 5.1 of the Company Disclosure Schedule, the Company covenants and agrees with Parent that (A) the business of the Company and its Subsidiaries shall be conducted in the ordinary course and consistent with past practice, and, to the extent consistent therewith, the Company and its Subsidiaries shall use their commercially reasonable efforts to preserve intact their current business organizations, to keep available the services of their current officers and key employees, and to preserve their relationships with material customers, suppliers, licensors, licensees, advertisers, distributors and other third parties having business dealings with them, and to preserve in all material respects the goodwill of their respective businesses; provided, however, that no action by the Company or any of its Subsidiaries with respect to matters addressed specifically by any specific provision of clause (B) of this Section 5.1 shall be deemed a breach of this clause (A) of Section 5.1 unless such action would constitute a breach of such specific provision of clause (B), and (B) the Company shall not, and (as applicable) shall not permit any of its Subsidiaries to:
(a) Caza covenants and agrees that its business shall be conducted only (i) authorize for issuance, issue, deliver, sell, or agree to issue, deliver or sell, or pledge or otherwise encumber, any shares of capital stock or any other securities convertible into, or any rights, warrants or options to acquire, any such shares, except for issuances of Shares upon the exercise of Options outstanding as of the date of this Agreement or purchase rights under the Company ESPP, or (ii) repurchase, redeem or otherwise acquire, any shares of capital stock or other equity interests, except for the repurchase of Shares in connection with the usual and ordinary course vesting of business consistent with past practicesRestricted Shares under, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult in accordance with the Offeror in respect of its ongoing business terms of, the Stock Option Plans and affairs and keep the Offeror apprised of all material developments relating theretoagreements executed thereunder;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; sell, transfer or pledge, or agree to sell, transfer or pledge, any equity interest owned by it, (ii) issue (alter through merger, liquidation, reorganization, restructuring or in any other than on exercise fashion its corporate structure or surrender of currently outstanding Caza Options)ownership, grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase amend or otherwise acquire change the Company Certificate or Company Bylaws or the certificate of incorporation, bylaws or equivalent organizational documents of any of its outstanding securitiesSubsidiary, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any shares of its securities; capital stock;
(v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vic) declare, set aside or pay any dividend or other distribution or payment dividends on (whether in cash shares cash, stock or property) ), or make any other distributions in respect of, any of its outstanding securities without capital stock, except for dividends paid by direct or indirect wholly owned Subsidiaries to the consent Company or another of its wholly owned Subsidiaries with respect to capital stock;
(d) (i) grant or agree to any material increase in the compensation or fringe benefits of, or pay any bonus to or enter into any new employment, severance or termination agreement, or amend any existing employment, severance or termination agreement with any current or former director, officer or employee except for (A) increases in compensation and payment of bonuses expressly required under employment agreements, bonus plans and other Company Plans, agreements and arrangements existing as of the Offerordate of this Agreement, (B) ordinary course raises granted to non-officer employees in connection with regularly scheduled performance reviews and (C) entering into offer letters with newly-hired non-officer employees, the terms and conditions of which consent may shall be withheld substantially similar to the terms and conditions of the forms previously provided to Parent and Purchaser, and which shall not provide for a term of employment or severance payments (other than those generally made pursuant to applicable Company policy, if any); (ii) become obligated under any employee benefit plan that was not in existence on the Offeror’s sole and absolute discretiondate hereof, or amend, modify or terminate any Company employee benefit plan or any agreement, arrangement, plan or policy for the benefit of any current or former director, officer or employee in existence on the date hereof, except as required by Law or the terms of any such plan; or (viiiii) enter into or modify pay any contract, agreement, commitment benefit not required by any plan or arrangement with respect to any as in effect as of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement (including, without limitation, the granting of, acceleration of, exercisability of or vesting of stock options, stock appreciation rights or restricted stock, except as otherwise required or permitted by the terms of this Agreement);
(e) acquire or agree to acquire, including, without limitation, by merging or consolidating with, or purchasing all or substantially all the assets or capital stock or other equity interests of, any business or any corporation, limited liability company, partnership or other business organization, other than purchases of assets in the ordinary course of business consistent with past practice and disclosed to the other party not in writing excess of $100,000;
(f) sell, lease, license, mortgage or otherwise disclosed encumber or subject to the any lien or otherwise dispose of, or agree to sell, lease, license, mortgage or otherwise encumber or subject to any lien or otherwise dispose of, any of its properties or assets other party, without the prior consent of the other party, such consent not to be unreasonably withheld: than (i) sellproperties or assets not in excess of $100,000 in one instance or $200,000 in the aggregate, pledge(ii) in the ordinary course of business consistent with past practice, dispose (iii) non-exclusive trademark and logo licenses granted by the Company to partners for marketing purposes in the ordinary course of business and that have a term of one year or encumber less remaining or that are terminable without penalty upon 60 days or less notice; (iv) nonexclusive licenses granted by the Company in the ordinary course of business to customers for such customers’ use of the Company’s products and services, (v) liens relating to Taxes that are not yet due and payable or otherwise being contested in good faith and as to which appropriate reserves have been established by the Company in accordance with GAAP, and (vi) liens of landlords, carriers, warehousemen, mechanics and materialmen that are incurred in the ordinary course of business, in each instance for amounts not yet due and payable;
(g) incur, assume or pre-pay any assetsindebtedness for borrowed money or enter into any agreement to incur, assume or pre-pay any indebtedness for borrowed money, except for (i) payments required or permitted and the incurrence of indebtedness in the ordinary course of business consistent with past practice, and (ii) financing of capital expenditures in the ordinary course of business and not in excess of $50,000;
(h) make or forgive any loans, advances or capital contributions to, guarantees for the benefit of, or investments in, any party, other than loans between or among the Company and any of its Subsidiaries and cash advances to the Company’s or any such Subsidiary’s employees for reimbursable travel and other business expenses incurred in the ordinary course of business consistent with past practice and guarantees made by the Company of the obligations of any of its Subsidiaries for the benefit of such Subsidiary;
(i) assume, guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any person other than the Company and its Subsidiaries, enter into any “keep well” or other agreement to maintain any financial statement condition of any person other than the Company and its Subsidiaries, or enter into any arrangement having the economic effect of any of the foregoing;
(j) fail to maintain insurance covering risks of such types and in such amounts as are consistent with the Company’s past practices, or cancel or terminate any material insurance policy that names the Company as beneficiary or loss payable payee;
(k) establish or acquire (i) any Subsidiary other than wholly-owned Subsidiaries, or (ii) Subsidiaries organized outside of the United States and its territorial possessions;
(l) amend, modify or waive any term of any of its outstanding securities;
(m) enter into any labor or collective bargaining agreement, memorandum or understanding, grievance settlement or any other agreement or commitment to or relating to any labor union, except as required by Law;
(n) settle or compromise any pending or threatened suit, action, claim or litigation, except in the ordinary course of business; business and where such settlement or compromise would result in payments (ii) expend or commit to expend any amounts individually and not in respect the aggregate), net of capital expenses, excluding certain expenditures which may be agreed to, from time to timeinsurance, by the Offeror in writingCompany of less than $100,000;
(o) change any of the material accounting policies, which for greater certaintypractices or procedures (including material Tax accounting policies, shall not be subject to practices and procedures) used by the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition Company and its Subsidiaries as of shares or assets) any corporation, partnership or other business organization or division thereof, orthe date hereof, except for investments as may be required as a result of a change in securities made applicable Law or in GAAP;
(p) make or change any material tax election, make or change any material method of accounting with respect to Taxes or compromise any material Tax liability or file any material amended Tax Return, except in each case as required by applicable Law;
(q) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business, make any investment, either by purchase business and consistent with past practice of shares liabilities reflected or securities, contributions reserved against in the financial statements of capital (other than to subsidiaries), property transfer, or, except the Company or incurred in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entitybusiness and consistent with past practice, or make payments otherwise expressly permitted by the terms of this Agreement;
(r) transfer or license to any loans third party any Company Intellectual Property (other than pursuant to a contract in effect as of the date of this Agreement), or advances;amend or modify any contract in effect as of the date of this Agreement and relating to Company Intellectual Property, other than the grant in the ordinary course of business of non-exclusive trademark and logo licenses that have a term of one year or less remaining or that are terminable without penalty upon 60 days or less notice and that are granted by the Company to partners for marketing purposes, and other than non-exclusive licenses to customers in connection with the provision of the Company’s or its Subsidiaries’ services; and
(s) agree or commit to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Napster Inc), Merger Agreement (Best Buy Co Inc)
Interim Operations. During (a) Except as required by applicable Law or expressly contemplated by this Agreement, the period Company covenants and agrees as to itself and its Subsidiaries that, after the date of this Agreement and prior to the Effective Time, the business of it and 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 reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of its and its Subsidiaries’ present employees and agents. Without limiting the generality of, and in furtherance of, the foregoing, from the date of execution this Agreement until the Effective Time, except as (A) required by applicable Law, (B) otherwise expressly contemplated by this Agreement or as set forth in Section 6.1 of the Company Disclosure Letter, or (C) Parent may approve in writing (such approval not to be unreasonably withheld), the Company will not and will not permit its Subsidiaries to:
(i) adopt or propose any change in its articles of incorporation or by-laws or other similar governing documents;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly owned Subsidiaries of the Company, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $25 million in any transaction or series of related transactions, other than acquisitions pursuant to Contracts in effect as of the date of this Agreement and ending Agreement;
(iv) except for the issuance of Shares upon the exercise of Company Options or upon the vesting or settlement of Company Units, Deferred Shares or Company Awards, in all cases outstanding on the earlier of the Effective Time and the termination date of this Agreement, except with issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the prior written consent issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the OfferorCompany or any of its Subsidiaries (other than the issuance of shares by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary), acting reasonablyor securities convertible or exchangeable into or exercisable for any shares of such capital stock, and except as otherwise required by law or expressly permitted any options, warrants or specifically contemplated by this Agreement:other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(av) Caza covenants and agrees that create or incur any Lien material to the Company or any of its business shall be conducted only Subsidiaries on any assets of the Company or any of its Subsidiaries having a value in excess of $5 million;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company) in excess of $25 million in the usual and aggregate;
(vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary) or enter into any Contract with respect to the voting of its capital stock;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(ix) incur, or enter into, amend, modify or terminate any Contract with respect to, any indebtedness for borrowed money or guarantee, or enter into, amend, modify or terminate any guarantee of, such indebtedness of another Person, or issue, sell, enter into, amend, modify or terminate any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for (i) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practicespractices not to exceed $25 million in the aggregate, and it shall use all commercially reasonable efforts to maintain and preserve its business(ii) indebtedness for borrowed money incurred in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, assets and advantageous business relationships. Caza shall consult (iii) guarantees incurred in compliance with this Section 6.1 by the Offeror in respect Company of indebtedness of wholly owned Subsidiaries of the Company or (iv) interest rate swaps that the Company or any of its ongoing business Subsidiaries enters into on customary commercial terms consistent with past practice and affairs and keep not to exceed $20 million in notional amount in the Offeror apprised of all material developments relating theretoaggregate;
(bx) Caza shall not, directly or indirectly, do or permit to occur any except as set forth in the capital budgets set forth in Section 6.1(a)(x) of the following:Company Disclosure Letter and consistent therewith, make or authorize any capital expenditure in excess of $5 million in the aggregate during any 12 month period;
(ixi) amend its constating documents; (ii) issue (other than on exercise or surrender in the ordinary course of currently outstanding Caza Optionsbusiness consistent with past practice, enter into any Contract that would have been a Material Contract (under clause (A), grant(B), sell (C), (D), (E) or pledge (F) of the definition of such term) or agree an IP Contract had it been entered into prior to issuethis Agreement;
(xii) make any changes with respect to financial accounting policies or procedures, grantexcept as required by changes in GAAP or the rules or policies of the Public Company Accounting Oversight Board;
(xiii) settle any litigation or other proceedings before a Governmental Entity (A) for an amount in excess of $1.25 million or any obligation or liability of the Company in excess of such amount, sell (B) on a basis that would result in (I) the imposition of any writ, judgment, decree, settlement, award, injunction or pledge similar order of any securities Governmental Entity that would restrict the future activity or conduct of Caza, the Company or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to Subsidiaries or (II) a finding or admission of a violation of Law or violation of the terms thereof rights of any Person by the Company or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; Subsidiaries, or (vC) adopt a plan that is brought by any current, former or purported holders of liquidation any capital stock or resolutions providing for debt securities of the liquidation, dissolution, merger, consolidation Company or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without Subsidiaries relating to the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or transactions contemplated by this Agreement;
(cxiv) other than in the ordinary course of business consistent with past practice, amend, modify or terminate any Material Contract (under clause (A), (B), (C), (D), (E) or (F) of the definition of such term) or IP Contract, or cancel, modify or waive any debts or claims held by it or waive any rights having in each case a value in excess of $500,000 or in the aggregate a value in excess of $5 million;
(xv) make any material Tax election or material change in any Tax election, change or consent to change the Company’s or any of its Subsidiaries’ method of accounting for Tax purposes, file any material amended Tax Return or enter into any settlement or compromise of any material Tax liability of the Company or any of its Subsidiaries;
(xvi) transfer, sell, assign, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of (A) the i2 government software assets or business, (B) the marketing services business, (C) capital stock of any of its Subsidiaries or (D) any other material assets, product lines, operation rights or businesses of the Company or its Subsidiaries, except in the case of subclause (D), (x) in connection with services provided in the ordinary course of business and sales of obsolete assets, (y) except for transactions disclosed sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $10 million in the Disclosure Letter, Caza will not, aggregate and will not permit any of its subsidiaries to, directly or indirectly, do any of the following (z) other than as contemplated by this Agreement or pursuant to commitments entered into Contracts in effect prior to the date of this Agreement Agreement;
(xvii) except as required pursuant to Company Benefit Plans set forth in Sections 5.1(h)(i) and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent 5.1(h)(viii) of the other partyCompany Disclosure Letter as in effect on the date of this Agreement, such consent not to be unreasonably withheld: or as otherwise required by applicable Law, (i) sellgrant or provide any severance or termination payments or benefits to any of its Subsidiaries, pledgedirectors, dispose of officers or encumber any assetsemployees, except in the ordinary course of business; (ii) expend increase the compensation, bonus or commit to expend any amounts in respect of capital expensespension, excluding certain expenditures which may be agreed towelfare, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership severance or other business organization whatsoever; (iv) acquire (by mergerbenefits of, amalgamation, consolidation or acquisition of shares or assets) pay any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entitybonus to, or make any new equity awards to any of its or its Subsidiaries’ directors, officers or employees, (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any of the Company Benefit Plans, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (vi) forgive any loans to any of its or advancesof any of its Subsidiaries’ directors, officers or employees;
(xviii) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in ARTICLE VII not being satisfied; or
(xix) agree, authorize or commit to do any of the foregoing.
(b) Prior to making any written material broad-based communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
(c) Parent shall not knowingly take or permit any of its Subsidiaries to take any action that is reasonably likely to prevent the consummation of the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Reed Elsevier PLC), Merger Agreement (Choicepoint Inc)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and or the termination of this AgreementAgreement in accordance with its terms (unless Parent shall otherwise approve in writing, except with the prior written consent of the Offerorsuch approval not to be unreasonably withheld, acting reasonablyconditioned or delayed), and except as otherwise expressly contemplated or permitted by this Agreement or required by law applicable Law or expressly permitted as set forth in Section 7.1(a) of the Company Disclosure Schedule, the Company and its Subsidiaries shall cause the business of it and its Subsidiaries to be conducted in the ordinary course and it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, officers, employees, lenders and business associates.
(b) Without limiting the generality of the foregoing, and in furtherance thereof, from the date hereof until the Effective Time or the termination of this Agreement in accordance with its terms, except (A) as otherwise specifically contemplated or permitted by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed), (C) as is required by applicable Law or (D) as set forth in Section 7.1(b) of the Company Disclosure Schedule, the Company will not and will not permit its Subsidiaries to:
(ai) Caza covenants and agrees that its business shall be conducted only adopt any change in (A) the certificate of incorporation or bylaws of the Company or (B) the other applicable governing instruments of the Subsidiaries of the Company that, in the usual case of clause (B), would adversely affect Parent;
(ii) except pursuant to a transaction expressly permitted by any of Sections 7.1(b)(iii) or 7.1(b)(xiv), merge, amalgamate or consolidate the Company or any of its Subsidiaries with any other Person;
(iii) make any acquisition in excess of $50 million for all acquisitions in the aggregate, of the capital stock or other ownership interests of any other Person or the business or assets that comprise a business or product line of any other Person, whether by way of stock purchase, asset purchase, merger, consolidation or otherwise, except for acquisitions of inventory or supplies in the ordinary course of business;
(iv) other than (A) the issuance of Shares upon the settlement of Company Equity Awards outstanding as of the date hereof or issued in accordance with Section 7.1(b)(xvii) (and dividend equivalents thereon, if applicable), (B) the issuance of shares of Company Subsidiary stock to the Company or any wholly owned Subsidiary of the Company, (C) as required to comply with any Benefit Plan, Benefit Agreement or other written agreement as in effect on the date of this Agreement and set forth on Section 7.1(b)(iv) of the Company Disclosure Schedule, or (D) dispositions permitted by clause (xiv), issue, sell, dispose of, grant any shares of capital stock or other ownership interests of the Company or any of its Subsidiaries or securities convertible or exchangeable into or exercisable for any shares of such capital stock or other ownership interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock, ownership interests or such convertible or exchangeable securities;
(v) make any loans, advances or capital contributions to or investments in any Person (other than (A) to the Company or its wholly owned Subsidiaries, (B) as required pursuant to any Contract made available to Parent in the data room prior to the date hereof, (C) extensions of trade credit in the ordinary course of business and (D) loans, advances or capital contributions in the aggregate of less than $15,000,000);
(vi) authorize, declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, other ownership interests or other securities, property or otherwise, with respect to any of its capital stock or other ownership interests (except dividends or distributions by any direct or indirect wholly owned Subsidiary of the Company to the Company or to any other wholly owned direct or indirect Subsidiary of the Company); provided, that the Company may, at its election, pay quarterly cash dividends in accordance with its past practice (including with respect to timing of declaration, record and payment dates and amount) but in no event in an amount that would exceed $0.23 per Share per fiscal quarter; provided, further, that the Company shall in no event declare any dividend that would be payable after the Effective Time;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of the capital stock of the Company or other ownership interests or securities convertible or exchangeable into or exercisable for any shares of the capital stock of the Company or other ownership interests of the Company (other than acquisitions in connection with cashless exercises of Company Stock Options or vesting or payment of Company Equity Awards, or Tax withholdings on the vesting or payment of Company Equity Awards);
(viii) incur, assume, issue, modify, renew, syndicate, guarantee, prepay, refinance or otherwise become liable for any Indebtedness (directly, contingent or otherwise) (other than (A) any letters of credit issued in the ordinary course of business consistent with past practicespractice, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(bB) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except borrowings in the ordinary course of business; business under (ii1) expend the Existing Credit Facility or commit (2) the Company’s commercial paper program, (C) any Indebtedness between the Company and any of its Subsidiaries or between the Subsidiaries of the Company or (D) in an amount not to expend exceed $50,000,000) or acquire or redeem, offer to acquire or redeem, or exercise any amounts right to make an offer to acquire or redeem the 3.375% Notes due November 1, 2020;
(ix) make any capital expenditures, other than (A) capital expenditures in respect 2014 not in excess of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants aggregate amount set forth in the Company’s capital expenditure plan for 2014 previously provided to Parent or capital expenditures in 2015 in an amount not in excess of 110% of the aggregate amount set forth in the Company’s 2014 capital expenditure plan and (B) any additional capital expenditures not described in clause (A) so long as the aggregate amount of such capital expenditures made pursuant to this Section 7.1(c)clause (B) does not exceed $10,000,000 in the aggregate; provided, however, that the Company and its Subsidiaries shall be permitted to make emergency capital expenditures in an amount not to exceed $10,000,000 in the aggregate;
(iiix) reorganizemake any material changes with respect to financial or Tax accounting methods of reporting income, amalgamate, merge or otherwise continue with any other Person, corporation, partnership deductions or other business organization whatsoever; items to financial accounting purposes, except as required by applicable Law or by changes in GAAP;
(ivxi) acquire other than (A) Dissenting Shares (which are the subject of Section 4.2(f)), (B) stockholder litigation (which is the subject of Section 7.16) and (C) as contemplated by mergerSection 7.5, amalgamationsettle or propose to settle any litigation, consolidation or acquisition of shares or assets) any corporation, partnership arbitration or other business organization proceeding by or before a Governmental Entity (x) for a monetary amount in excess of $10,000,000 in the aggregate, (y) that imposes any material equitable or material non-monetary relief on the Company, any of its Subsidiaries or any of its officers or directors or (z) that requires the admission of wrongdoing by the Company or any of its Subsidiaries of a nature that would reasonably be expected to have any material adverse effect on any division thereof, of the Company or any of its Subsidiaries or that disparages Parent or any of its Subsidiaries;
(xii) change its fiscal or Tax year or, except for investments to the extent required by Law, make or change any material Tax election;
(xiii) enter into any settlement, compromise or closing agreement with respect to any material Tax Liability or Tax refund or file any amended Tax Return with respect to any material Tax or surrender any right to claim a material refund of Taxes (except to the extent the consequences thereof are adequately reserved in securities made accordance with GAAP in the Company Reports);
(xiv) sell, lease, license, transfer or otherwise dispose of any of its properties or assets (including capital stock of any Subsidiary of the Company) with a value in excess of $20,000,000 (including the value of any assumed liabilities), other than (A) sales or other dispositions of inventory and other assets in the ordinary course of business, make (B) the licensing or sublicensing of Intellectual Property in the ordinary course of business or (C) as required pursuant to existing Contracts made available to Parent in the dataroom prior to the date hereof;
(xv) (A) abandon, voluntarily permit to lapse before expiration, any investmentCompany IP that is material to the Company and its Subsidiaries, either by purchase of shares taken as a whole, or securities(B) sell, contributions of capital (transfer or license to any third-person or otherwise extend any Company IP that is material to the Company and its Subsidiaries, taken as a whole, other than to subsidiaries), property transfer, or, non-exclusive licenses of Intellectual Property rights granted by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;
(xvi) except in the ordinary course of business, purchase enter into or assume any property swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial instrument, contract or assets arrangement, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, (including for interest rate and foreign exchange rate hedging), except foreign exchange hedging on customary commercial terms in compliance with the Company’s hedging policies in effect on the date hereof;
(xvii) except as required pursuant to a Benefit Plan or Benefit Agreement in effect on the date hereof or as set forth in Section 7.1(b)(xvii) of the Company Disclosure Schedule, (A) grant or provide any severance or termination payments or benefits to any Employees or Other Service Providers, (B) increase the compensation or pay or establish any award or bonus to or for any Employees or Other Service Providers, (C) establish, adopt, terminate or materially amend any Benefit Plan or Benefit Agreement or any plan, program, arrangement, policy or agreement that would be a Benefit Plan or Benefit Agreement if it were in existence on the date hereof, other than with respect to Benefit Plans and Benefit Agreements that are not described in clause (D) below and in cases where such adoption, termination or amendment applies only to non-Executive Officers of the Company or any Subsidiary of the Company in the ordinary course of business consistent with past practice and to the extent that such action would not reasonably be expected to result in material expense or Liability to the Company or any of its Subsidiaries, (D) grant any equity or equity-based awards, long-term incentive awards or retention awards, (E) hire any new employee of the Company or any Subsidiary of the Company or engage any other individual or entity; (v) incur any indebtedness for borrowed money to provide services to the Company or any Subsidiary of the Company, other material liability than with respect to non-Executive Officers of the Company or any Subsidiary of the Company in the ordinary course of business consistent with past practice and with respect to Executive Officers as needed to replace such Executive Officer, (F) terminate the employment of any current Employee or the engagement of any current contractor of the Company or any Subsidiary of the Company, other than in the ordinary course of business consistent with past practice or for cause, (G) negotiate, enter into, amend, modify or terminate any Collective Bargaining Agreement, or (H) waive, limit, release or condition any Restrictive Covenant obligation or issue any debt securities Employee or assumeOther Service Provider; provided, guaranteehowever, endorse that the foregoing clauses (A) – (H) shall not restrict the Company or any of its Subsidiaries from entering into or making available to newly hired employees or to Employees in the context of promotions based on job performance or workplace requirements, including replacement of an open position, in each case in the ordinary course of business, plans, agreements, benefits and compensation arrangements (but not including equity or equity-based awards) that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions; provided, further, that the consent of Parent shall be required in the event of a promotion or hiring to the Executive Officer level unless such promotion or hiring is to replace an Executive Officer. For purposes of this Section 7.1(b), the “Executive Officers” are those individuals listed on Section 7.1(b)(xvii) of the Company Disclosure Schedule;
(xviii) adopt or enter into a plan or agreement of complete or partial liquidation or dissolution of the Company;
(xix) grant any Lien on any material assets of the Company or any of its Subsidiaries other than Permitted Liens;
(xx) enter into any new line of business that would be material to the Company and its Subsidiaries, taken as a whole, outside the businesses being conducted by the Company and its Subsidiaries on the date hereof and any reasonable extensions thereof, other than in the ordinary course;
(xxi) enter into any Contract that, after giving effect to the Merger, would limit or otherwise as an accommodation become responsible forrestrict in any material respect Parent or any of its respective Affiliates (other than the Company and its Subsidiaries), from engaging or competing in any line of business, in any location or with any Person;
(xxii) materially amend or modify, extend, terminate, sublease or grant any waiver under, any Material Contract or any Contract that would constitute a Material Contract if entered into prior to the obligation date hereof (other than the expiration or renewal of any Material Contract in accordance with its terms), in ease case, other individual than in the ordinary course of business;
(xxiii) enter into any transactions, agreements, arrangements or entityunderstandings with any significant holder of Shares or their respective affiliated entities (other than the Company and its Subsidiaries) that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act;
(xxiv) terminate the employment of any Executive Officer without cause or change the terms and conditions of employment of any Executive Officer in a manner which would constitute “good reason” under a Contract between the Company and such Executive Officer; or
(xxv) agree, authorize or make commit, whether or not in writing, to do any loans or advances;of the foregoing
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Sigma Aldrich Corp)
Interim Operations. During the period from (a) After the date of execution of this Agreement and ending on prior to the earlier of the Effective Time and the termination of this AgreementAgreement in accordance with its terms, except with (i) as Parent shall otherwise consent (such consent not to be unreasonably withheld, delayed or conditioned and such consent to be deemed given if Parent provides no written response within 3 business days after a written request by the prior written consent of the OfferorCompany for such consent) or request, acting reasonably, and except (ii) as otherwise required by law or expressly permitted or specifically contemplated by this Agreement, (iii) as required by applicable Laws, (iv) as set forth in Section 5.1 of the Company Disclosure Letter or (v) as necessary to comply with the express obligations of any Company Material Contract in effect on the date hereof (the exceptions described in the foregoing clauses (i) through (v), each, a “General Exception”), the Company shall use commercially reasonable efforts to conduct its and its Subsidiaries’ business in the ordinary course of business consistent with past practice, and, to the extent consistent therewith, it shall, and it shall cause its Subsidiaries to, use its and their respective commercially reasonable efforts to preserve their business organizations; provided, that, no action by the Company or any of its Subsidiaries with respect to matters specifically addressed by any provision of Section 5.1(b) shall be deemed a breach of Section 5.1 unless such action or omission would constitute a breach of such provision of Section 5.1(b).
(b) Without limiting the generality of and in furtherance of the foregoing but subject to the proviso in Section 5.1(a), from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, except pursuant to a General Exception, the Company will not and will not permit its Subsidiaries to:
(ai) Caza covenants and agrees that its business shall be conducted only adopt any change in the usual Company’s or any Subsidiary’s certificate of incorporation or bylaws or comparable governing documents;
(ii) merge or consolidate itself or any of its Subsidiaries with any other Person (except for any such transaction among its wholly owned subsidiaries), restructure, reorganize or completely or partially liquidate;
(iii) other than (A) in connection with the exercise, vesting or settlement of Company Equity Awards outstanding as of the date hereof and in accordance with the terms thereof (including sales of Shares in order to satisfy tax withholding obligations) or (B) as disclosed in Section 5.1(b)(iii) of the Company Disclosure Letter, issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance by it or any of its Subsidiaries of, any shares of its capital stock or of any its Subsidiaries (other than the issuance of shares by its wholly-owned Subsidiary to it or another of its wholly-owned Subsidiaries), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(iv) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly-owned Subsidiary to it or to any other direct or indirect wholly-owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(v) other than (A) acquisitions of Shares tendered by holders of Company Equity Awards outstanding as of the date hereof and in accordance with the terms thereof, in order to satisfy obligations to pay the exercise price and/or tax withholding obligation with respect thereto, and (B) the acquisition by the Company of Shares in connection with the forfeiture of Company Equity Awards, reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of the Company’s capital stock or securities convertible or exchangeable into or exercisable for any shares of the Company’s capital stock;
(vi) (A) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or of any of its Subsidiaries, except for (x) (1) indebtedness incurred in the ordinary course of business under its credit agreements and facilities as in effect on the date of this Agreement, including under the Sub Debt Facility or (2) as necessary to operate the business in the ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (viiy) enter into or modify any contractinterest rate swaps on customary commercial terms, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(cB) except for transactions disclosed credit default protection provided in the Disclosure Letter, Caza will not, connection with services and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except products in the ordinary course of business; business consistent with past practice, enter into any “keep well” or other Contract to maintain any financial statement condition of any other Person (iiother than any of its Subsidiaries) expend or commit to expend (C) enter into any amounts in respect arrangement having the economic effect of capital expenses, excluding certain expenditures which any of the foregoing clause (A) or (B);
(vii) except as may be agreed to, from time to time, required by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge GAAP or otherwise continue with any other Personapplicable accounting standard (including the Current Expected Credit Loss accounting standard), corporation, partnership make any material changes with respect to accounting policies or procedures;
(viii) other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than in the ordinary course of business, (A) settle or compromise any material Tax claim, audit, or assessment for an amount materially in excess of the amount reserved or accrued on the Audited Company Balance Sheet (or most recent consolidated balance sheet included in the Company Reports), (B) make, change or revoke any material Tax election, material method of Tax accounting or any annual Tax accounting period, (C) amend any material Tax Returns or file claims for material Tax refunds, or (D) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or its Subsidiaries;
(ix) transfer, sell, lease, exclusively license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse (except with respect to patents expiring in accordance with their terms) or expire or otherwise dispose of any of its material assets, product lines or businesses or of its Subsidiaries, including capital stock of any of its Subsidiaries, except (A) in connection with services and products provided in the ordinary course of business consistent with past practice and sales of obsolete assets, (B) incurrence of Permitted Liens, (C) for assets with a fair market value not in excess of $350,000 in the aggregate, in the ordinary course of business consistent with past practice, or (D) pursuant to Contracts in effect prior to the date of this Agreement;
(x) other than (A) as set forth on Section 5.1(b)(x) of the Company Disclosure Letter, or (B) as required by any Company Benefit Plan in effect on the date of this Agreement, (1) materially increase any compensation or benefit provided or to be provided to any current or former employee or other service provider of the Company or any of its Subsidiaries, (2) enter into or adopt any new Company Benefit Plan or amend in any material respect or terminate any Company Benefit Plan except for routine amendments or renewals of health and welfare plans in the ordinary course of business consistent with past practice, or (3) accelerate the funding or vesting of any material compensation or benefit;
(xi) except in connection with services and products provided in the ordinary course of business consistent with past practices or pursuant to Contracts, copies of which shall be publicly filed with the SEC or shall have been provided to Parent, in effect prior to the date of this Agreement, (A) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or (B) except in favor of its Subsidiaries, make any investmentloans, either by purchase of shares advances, or securities, capital contributions of capital to or investments in any Person (other than advances of expenses to subsidiariesemployees in the ordinary course of business and loans and other credit products to and for the Company’s commercial counterparties);
(xii) other than (A) in the ordinary course of business consistent with past practice or (B) as permitted under Section 5.1(b)(iii), 5.1(b)(v) or 5.1(b)(x), enter into or amend or modify in any material respect, or consent to the termination of (other than at its stated expiry date), any Company Material Contract or any Lease with respect to material real property transferor any other Contract or Lease that, orif in effect as of the date hereof would constitute a Company Material Contract or Lease with respect to material real property hereunder;
(xiii) settle or compromise any Action involving the payment of monetary damages by the Company or any of its Subsidiaries of any amount exceeding $350,000 in the aggregate (not including any amounts payable or reimbursable by insurance), other than (A) any Action brought against or by Parent, Merger Sub, Sponsor or any of their respective Affiliates and Financing Sources arising out of a breach or alleged breach of this Agreement, the Confidentiality Agreement, the Equity Commitment Letter or the Limited Guarantee, and (B) the settlement of claims, liabilities, or obligations specifically reserved against on the Audited Company Balance Sheet (or most recent consolidated balance sheet included in the Company Reports) in an amount not in excess of the specific reserve with respect to such claim, liability or obligation; provided, that, neither the Company nor any of its Subsidiaries shall settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief that has a material restrictive impact on the Company’s business;
(xiv) enter into any material agreement, agreement in principle, letter of intent, memorandum of understanding, or similar Contract, in each case with respect to any joint venture, strategic partnership, or alliance (excluding, for avoidance of doubt, strategic relationships not involving equity, alliances, reseller agreements, and relationships that are commercial in nature);
(xv) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy except in the ordinary course of businessbusiness or if such material insurance policy is replaced by a substantially comparable policy; or
(xvi) agree, purchase authorize or commit to do any property of the foregoing.
(c) Nothing contained in this Agreement is intended to give Parent, directly or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible forindirectly, the obligation right to control or direct the operations of any other individual the Company or entityits Subsidiaries prior to the Effective Time in violation of applicable Law. Prior to the Effective Time, or make any loans or advances;the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ operations.
Appears in 2 contracts
Samples: Merger Agreement (Elevate Credit, Inc.), Merger Agreement (Elevate Credit, Inc.)
Interim Operations. During (a) Except as set forth in the period corresponding section of the Company Disclosure Schedule or otherwise as expressly provided herein, subject to applicable Law, the Company covenants and agrees as to itself and its Subsidiaries that, from the date of execution of this Agreement and ending on until the earlier Effective Time, the business of the Effective Time Company and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business Subsidiaries shall be conducted only in the usual ordinary course and, to the extent consistent therewith, the Company and its Subsidiaries shall use their respective commercially reasonable efforts to preserve their business organizations intact and maintain their existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, key employees and business associates and keep available the services of the present key employees of the Company and its Subsidiaries.
(b) Without limiting the generality of Section 7.1(a) and in furtherance thereof, except as set forth in the corresponding section of the Company Disclosure Schedule or as otherwise expressly provided herein, from the date of this Agreement until the Effective Time, the Company shall not and shall not permit its Subsidiaries to (unless Parent shall otherwise approve in writing, in its sole discretion):
(i) adopt or propose any change in its certificate of incorporation or By-Laws (or similar governing documents);
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly-owned Subsidiaries of the Company;
(iii) acquire assets outside of the ordinary course of business from any Persons with a purchase price in excess of $100,000 in the aggregate except pursuant to Contracts in effect as of the date of this Agreement;
(iv) other than (A) as required by the terms of Contracts in effect as of the date of this Agreement, (B) upon the exercise of outstanding Company Options or Company Common Warrants or warrants to purchase Series B Stock, (C) pursuant to the terms of the Debentures (to the extent required by such terms) or (D) upon conversion of outstanding shares of Series A Stock and Series B Stock, in each case, in accordance with their terms, issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any Company Subsidiary (other than the issuance of shares by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), or securities convertible or exchangeable or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for (i) dividends or other distributions by any direct or indirect wholly-owned Subsidiary of the Company to the Company or to any other direct or indirect wholly-owned Subsidiary of the Company, (ii) periodic dividends and other periodic distributions by non-wholly-owned Subsidiaries of the Company in the ordinary course of business, and (iii) declaration and payment of scheduled dividends with respect to the Series A Stock);
(vi) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(vii) incur any third-party indebtedness for borrowed money or guarantee indebtedness or any other obligation of another Person other than in the ordinary course of business consistent with past practices, practice and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult in compliance with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoCompany’s existing Contracts;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (viiviii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments Contract that would have been a Material Contract had it been entered into prior to the date execution of this Agreement and disclosed to the Agreement, other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, than any such consent not to be unreasonably withheld: Contract (iA) sell, pledge, dispose of or encumber any assets, except entered into in the ordinary course of business; business or (iiB) expend or commit to expend providing for any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject expenditure to the covenants set forth in this extent permitted by Section 7.1(c7.1(c)(ii); ;
(iiiix) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than in the ordinary course of business, amend or modify in any material respect, or terminate or waive any material right or benefit under, any Material Contract;
(x) make any investmentchanges with respect to accounting policies or practices, either except as required by purchase changes in GAAP or by Law;
(xi) settle any litigation or other proceedings before or threatened to be brought before a Governmental Entity or arbitral proceeding for an amount payable by or on behalf of shares the Company or securitiesany Subsidiary in excess of $100,000 in the aggregate for all such litigation or proceedings (exclusive of any amounts to be received by the Company in reimbursement of such settlement amount, contributions of capital (whether under any insurance policy or indemnity, other than such amounts that are contested) or which would be reasonably likely to subsidiaries)have any material adverse impact on the operations of the Company or any of its Subsidiaries or on any current or future litigation or other proceeding of the Company or any of its Subsidiaries;
(xii) sell, property transferlease, or, license or otherwise dispose of any assets of the Company or its Subsidiaries except for sales of (A) products or services provided in the ordinary course of businessbusiness or (B) other assets in aggregate amount not in excess of $100,000 in the aggregate, purchase any property or assets and other than pursuant to Contracts in effect as of the date of this Agreement;
(xiii) engage in the conduct of any new line of business; or
(xiv) agree, resolve or commit to do any of the foregoing.
(c) Without limiting the generality of Section 7.1(a) and in furtherance thereof, except as set forth in the corresponding section of the Company Disclosure Schedule or as otherwise expressly provided herein, from the date of this Agreement until the Effective Time, the Company shall not and shall not permit its Subsidiaries to (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed and which shall be subject to the procedures set forth on Schedule 7.1(c) of the Company Disclosure Schedule):
(i) other individual than pursuant to Contracts in effect as of the date of this Agreement, make any loan, advance or entitycapital contribution to or investment in any Person (other than a wholly-owned Subsidiary of the Company) outside the ordinary course of business;
(ii) make or authorize any capital expenditure in excess of $100,000 in the aggregate;
(iii) except as required by Law, make any material Tax election or take any material position on any material Tax Return filed on or after the date of this Agreement or adopt any material method therefor that is inconsistent with elections made, positions taken or methods used in preparing or filing similar Tax Returns in prior periods;
(iv) other than pursuant to Contracts in effect as of the date of this Agreement or as otherwise required by Law, (A) enter into any new employment or compensatory agreements with, or increase the compensation and employee benefits of, any employee, consultant, or director of the Company or any of its Subsidiaries (including entering into any bonus, severance, change of control, termination, reduction-in-force or consulting agreement or other employee benefits arrangement or agreement pursuant to which such person has the right to any form of compensation from the Company or any of its Subsidiaries), (B) hire any employee to fill a position at the level of (i) executive officer or (ii) vice president or above who reports directly to an executive officer, or (C) adopt or amend in any respect, or accelerate vesting or payment under, any Benefit Plan in the case of clauses (A) and (C) above other than in the ordinary course of business consistent with past practice; or
(v) incur agree, resolve or commit to do any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, of the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Moscow Cablecom Corp), Merger Agreement (Renova Media Enterprises Ltd.)
Interim Operations. During (a) Without limiting the period Company's obligations under Section 6.5 of this Agreement, except as set forth in the corresponding section of the Company Disclosure Letter or otherwise as expressly contemplated hereby, the Company covenants and agrees as to itself and its Subsidiaries that, from the date of this Agreement until the Effective Time (unless Cingular shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed), the business of it and its Subsidiaries shall be conducted in the ordinary course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the present employees and agents of the Company and its Subsidiaries. Without limiting the Company's obligations under Section 6.5 of this Agreement and without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, the Company will not and will not permit its Subsidiaries to (unless Cingular shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed):
(i) adopt or propose any change in its certificate of incorporation or by-laws or other applicable governing instruments;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly-owned Subsidiaries of the Company that are not obligors or guarantors of third party indebtedness;
(iii) acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $50,000,000, other than acquisitions pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and ending on the earlier set forth in Section 6.1(a)(iii) of the Effective Time and the termination of this Agreement, except with the prior written consent Company Disclosure Letter or as otherwise set forth in Section 6.1(a)(iii) of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoCompany Disclosure Letter;
(biv) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to Contracts to the terms thereof or extent in effect as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into immediately prior to the date execution of this Agreement and disclosed to the other party set forth in writing or otherwise disclosed to the other party, without the prior consent Section 6.1(a)(iv) of the Company Disclosure Letter, and other partythan the issuance of shares of Common Stock upon the exercise of outstanding Company Options and pursuant to other equity-based awards granted under the Stock Plans and shares under the Company's 401(k) plan and the deferred compensation plans, such consent not to be unreasonably withheld: (i) in each case, in accordance with their terms, issue, sell, pledge, dispose of of, grant, transfer, lease, license, guarantee, encumber, or encumber authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect shares of capital expenses, excluding certain expenditures which may be agreed to, from time to time, stock of the Company or any its Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary of the Offeror in writing, which for greater certainty, shall not be subject Company to the covenants set forth in this Section 7.1(cCompany or another wholly-owned Subsidiary); (iii) reorganize, amalgamateor securities convertible or exchangeable or exercisable for any shares of such capital stock, merge or otherwise continue with any other Personoptions, corporation, partnership warrants or other business organization whatsoever; rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(ivv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments than in securities made connection with existing receivables facilities and securitizations and renewals thereof in the ordinary course of business, create or incur any Lien on assets of the Company or any of its Subsidiaries that is material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole;
(vi) other than acquisitions pursuant to Contracts to the extent in effect as of immediately prior to the execution of this Agreement and set forth in Section 6.1(a)(vi) of the Company Disclosure Letter, make any investmentloan, either by purchase of shares advance or securities, contributions of capital contribution to or investment in any Person (other than to subsidiaries)a wholly-owned Subsidiary of the Company) in excess of $25,000,000 in the aggregate;
(vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property transferor otherwise, orwith respect to any of its capital stock (except for dividends or other distributions by any direct or indirect wholly-owned Subsidiary of the Company to the Company or to any other direct or indirect wholly-owned Subsidiary of the Company and periodic dividends and other periodic distributions by non-wholly-owned Subsidiaries consistent with past practices) or enter into any agreement with respect to the voting of its capital stock;
(viii) other than the redemption of the Series C Preferred Stock or the Series E Preferred Stock in accordance with the Company's certificate of incorporation, except in the ordinary course of businessreclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any property of its capital stock or assets securities convertible or exchangeable into or exercisable for any share of any other individual or entity; its capital stock;
(vix) incur any indebtedness for borrowed money or any other material liability or obligation guarantee such indebtedness of another Person, or issue or sell any debt securities or assumewarrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, guaranteeexcept for (A) indebtedness for borrowed money incurred in the ordinary course of business not to exceed $50,000,000 in the aggregate, endorse (B) indebtedness for borrowed money in replacement of existing indebtedness for borrowed money on customary commercial terms, (C) guarantees incurred in compliance with this Section 6.1(a) by the Company of indebtedness of wholly-owned Subsidiaries of the Company or (D) interest rate swaps on customary commercial terms, consistent with past practices and not to exceed $750,000,000 of notional debt in the aggregate;
(x) except as set forth in Section 6.1(a)(x) of the Company Disclosure Letter, make or authorize any capital expenditure;
(xi) enter into any Material Contract that would have ' been a Material Contact as described in clauses (J), (L) or (M) of Section 5.1(j)(i) had it been entered into prior to the execution of this Agreement, and other than in the ordinary course of business, enter into any other Material Contract that would have been a Material Contract as described in Section 5.1(j)(i) (other than as described in clauses (J), (L) or (M)) had it been entered into prior to the execution of this Agreement;
(xii) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP or by Law or except as the Company, based on the advice of its independent auditors and after consultation with Cingular, determines in good faith is advisable to conform to best accounting practices;
(xiii) settle any litigation or other proceedings before or threatened to be brought before a Governmental Entity for an amount in excess of $10,000,000 or which would be reasonably likely to have any adverse impact on the operations of the Company or any of its Subsidiaries or on any current or future litigation or other proceeding of the Company or any of its Subsidiaries; provided, that any litigation or other proceeding with respect to an item relating to Taxes may be settled for an amount that is not in excess of the amount reserved or accrued for such item on the most recent balance sheet contained in the Company Reports filed prior to the date of this Agreement (which reserve and accrual information shall be furnished by the Company to Cingular upon Cingular's request);
(xiv) other than in the ordinary course of business, amend or modify in any material respect, or terminate or waive any material right or benefit under any Material Contract;
(xv) except as required by Law, make any material Tax election or take any material position on any material Tax Return filed on or after the date of this Agreement or adopt any material method therefor that is inconsistent with elections made, positions taken or methods used in preparing or filing similar Tax Returns in prior periods. Notwithstanding the foregoing, the Company shall consult with Cingular and its Representatives prior to claiming any depreciation allowance under Section 168(k) of the Code;
(xvi) sell, lease, license, or otherwise as an accommodation become responsible for, the obligation dispose of any assets of the Company or its Subsidiaries except for ordinary course sales of mobile telephone equipment to customers of the Company, services provided in the ordinary course of business or obsolete assets and except for sales, leases, licenses or other individual dispositions of assets with a fair market value not in excess of $25,000,000 in the aggregate, other than pursuant to Contracts in effect prior to the execution of this Agreement and set forth in Section 6.1(a)(iii) of the Company Disclosure Letter or entityas otherwise set forth in Section 6.1(a)(iii) of the Company Disclosure Letter and other than any dispositions of assets to the extent used as consideration for acquisitions that are permitted pursuant to Section 6.1(a)(iii);
(xvii) except as required pursuant to existing written, binding agreements in effect prior to the execution of this Agreement, as otherwise required by Law, or in the ordinary course of business consistent with past practice (which with respect to annual bonus plans and performance share awards is set forth in Section 6.1(a)(xvii) of the Company Disclosure Letter), (i) enter into any commitment to provide any severance or termination benefits to (or amend any existing arrangement with) any director, officer or employee of the Company or any of its Subsidiaries, (ii) increase the benefits payable under any existing severance or termination benefit policy or employment agreement (other than as required to be increased pursuant to the existing terms of any such policy or agreement), (iii) enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement) with any director or officer of the Company or any of its Subsidiaries other than for new hires, (iv) establish, adopt, amend, terminate or make any loans new awards under any bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or advancesother benefit plan or arrangement covering any director, officer or employee of the Company or any of its Subsidiaries (v) increase the compensation, bonus or other benefits payable to any director, officer, employee, consultant or independent contractor of the Company or any of its Subsidiaries, or (vi) amend the terms of any outstanding Company Option or other equity-based award; provided, that the Company shall in no event take any action to amend its severance plans, except as required by applicable Law;
(xviii) fail to initiate appropriate steps to renew any material FCC Licenses held by the Company or its Subsidiaries that are scheduled to terminate prior to or within 60 days after the Effective Time;
(xix) engage in the conduct of any business requiring the receipt or transfer of a License issued by a Governmental Entity other than engaging in the mobile wireless voice and data business in the U.S. and activities incident thereto, other than any other current lines of business and geographic locations of the Company or any of its Subsidiaries and other than as expressly permitted by Section 6.1(a)(iii) of the Company Disclosure Letter;
(xx) except as otherwise permitted hereby with respect to employees, enter into any material Contract with or engage in any material transaction with DoCoMo or any other Affiliate of the Company;
(xxi) adopt a technology platform other than existing technologies, (including analog, TDMA, EDGE, GSM and GPRS), HSDPA or UMTS and W-CDMA (including in each case the standards set forth on Section 6.1(a)(xxi) of the Company Disclosure Letter);
(xxii) amend, modify or waive any provision under the Rights Agreement; and
(xxiii) agree or commit to do any of the foregoing.
(b) Each of SBC and BellSouth will cause Cingular and Cingular Wireless to take all action necessary to consummate the transactions contemplated by this Agreement subject to the terms and conditions hereof. Neither SBC nor BellSouth will take or permit any of its Subsidiaries to take any action that at the time of taking such action is reasonably likely to prevent the consummation of the Merger. Except as set forth in the corresponding section of the disclosure letter delivered by SBC to the Company at the time of entering into this Agreement (the "SBC Disclosure Letter"), neither SBC nor BellSouth shall, and each shall cause its Subsidiaries not to, prior to the Termination Date, (i) enter into any definitive agreement for the acquisition of any business or Person which provides commercial mobile wireless voice and data services offered to the public utilizing frequencies and spectrum licensed by the FCC, other than the provision of such services in de minimis amounts or (ii) take any action which would, at the time the action is taken, reasonably be expected to materially interfere with its ability to make available to Cingular or the Paying Agent as of the Effective Time funds sufficient for its Specified Interest of the Merger Consideration. Each of SBC and BellSouth will, subject to the terms and conditions of this Agreement, make available to Cingular or the Paying Agent its Specified Interest of the Merger Consideration.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cingular Wireless LLC), Agreement and Plan of Merger (Cingular Wireless LLC)
Interim Operations. During (a) Each of the period from Partnership and Parent covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement and ending on the earlier of prior to the Effective Time and (unless Parent or the termination of this AgreementPartnership, except with the prior written consent of the Offeroras applicable, acting reasonablyshall otherwise approve in writing (which approval shall not be unreasonably withheld, conditioned or delayed)), and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants , as provided in any Contract in effect as of the date of this Agreement, or as required by applicable Law, the business of it and agrees that its business Subsidiaries shall be conducted only in the usual Ordinary Course and, to the extent consistent therewith, it and ordinary course of business consistent with past practices, and it its Subsidiaries shall use all their respective commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and preserve its businessgoodwill with Governmental Entities, assets customers, suppliers, licensors, licensees, distributors, creditors, lessors, employees and advantageous business relationshipsassociates. Caza shall consult with Without limiting the Offeror generality of and in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any furtherance of the following:
foregoing, from the date of this Agreement until the Effective Time, except as otherwise expressly: (i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (ii) contemplated by any Contract entered into prior to, concurrently with or after the date of this Agreement by Parent with respect to the Other Parent Transactions (as such Contract may be amended, supplemented or otherwise modified from time to time); (iii) required by applicable Law or the terms of any Contract in effect on the date of this Agreement, (iv) splitas approved in writing (which approval shall not be unreasonably withheld, combine conditioned or reclassify delayed) by the other Party; or (v) set forth in the corresponding subsection of Section 8.1 of the Partnership Disclosure Letter, as it relates to the Partnership and its Subsidiaries, or on Section 8.1 of the Parent Disclosure Letter, as it relates to Parent and its Subsidiaries, each Party, on its own account, shall not and shall not permit its Subsidiaries to:
(i) make any material change to the nature of its business and operations;
(ii) make any change to its Organizational Documents as in effect on the date of this Agreement in any manner that would reasonably be expected to prohibit, prevent or materially impede, hinder or delay the ability of such Party to satisfy any of the conditions to, or the consummation of, the Merger or the other Transactions;
(iii) (A) merge or consolidate itself or any of its securities; Subsidiaries with any other Person (vexpressly excluding, for the avoidance of doubt, any of the Other Parent Transactions), or (B) adopt a plan or agreement of liquidation complete or resolutions providing for the partial liquidation, dissolution, mergerrestructuring, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend recapitalization or other distribution reorganization, in each case, except (1) such transactions solely between or payment among, or solely involving, such Party and one or more of its wholly owned Subsidiaries, or a Subsidiary of such Party and one or more wholly owned Subsidiaries of such Subsidiary, (whether 2) as would not reasonably be expected to result in cash a Partnership Material Adverse Effect or Parent Material Adverse Effect, as applicable, or (3) as would not reasonably be expected to prohibit, prevent or materially impede, hinder or delay the ability of such Party to satisfy any of the conditions to, or the consummation of, the Merger or the other Transactions;
(iv) issue, sell, grant, transfer or authorize the issuance, sale or grant, or otherwise enter into any Contract with respect to the voting of, any of its partnership interests, limited liability company interests, shares of capital stock or propertyequity interests, as applicable (other than the issuance of partnership interests, limited liability company interests, shares of capital stock or equity interests, as applicable, (A) by its wholly owned Subsidiary to it or another of its wholly owned Subsidiaries, (B) by the Partnership to the GP Delegate pursuant to the Partnership Agreement or (C) in respect of its equity-based awards outstanding securities without the consent as of the Offerordate of this Agreement in accordance with their terms and, which consent may be withheld as applicable, the plan documents as in effect on the Offeror’s sole and absolute discretion; date of this Agreement), or (vii) enter securities convertible or exchangeable into or modify exercisable for any contractsuch partnership interests, agreementlimited liability company interests, commitment shares of capital stock or arrangement with respect equity interests, as applicable, or any options, warrants or other rights of any kind to acquire any partnership interests, limited liability company interests, shares of the foregoing except capital stock or equity interests, as otherwise permitted applicable, or contemplated by this Agreementsuch convertible or exchangeable securities;
(cv) except for transactions disclosed in the Disclosure Letterreclassify, Caza will notsplit, and will not permit any of its subsidiaries tocombine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its partnership interests, limited liability company interests, shares of capital stock or equity interests, as applicable, or securities convertible or exchangeable into or exercisable for any partnership interests, limited liability company interests, shares of capital stock or equity interests, as applicable;
(vi) waive, release, assign, settle or compromise any claim, action or proceeding, including any state or federal regulatory proceeding seeking damages or injunction or other equitable relief, which waiver, release, assignment, settlement or compromise would reasonably be expected to result in a Partnership Material Adverse Effect or Parent Material Adverse Effect, as applicable;
(vii) other than in the Ordinary Course, make, change or revoke any material Tax election, adopt or change any material Tax accounting method, file any material amended Tax Return, settle any material Tax claim, audit, assessment or dispute for an amount materially in excess of the amount reserved or accrued on such Party’s most recent consolidated balance sheet included in the Parent Reports or Partnership Reports, as applicable, or surrender any right to claim a refund of a material amount of Taxes;
(viii) make any material changes with respect to accounting policies, except as required by changes in GAAP;
(ix) make or declare any dividends or distributions to the holders of Common Units or Parent Common Stock, in each case, other than in the Ordinary Course, subject to Section 8.12; or
(x) agree, authorize or commit to do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior foregoing.
(b) Notwithstanding anything to the date of contrary in this Agreement and disclosed Agreement, a Party’s obligations under Section 8.1(a) to the other party in writing take an action or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: take an action, or to cause its Subsidiaries to take an action or not to take an action, shall, with respect to any Persons (and their respective Subsidiaries) controlled by such Party, or in which such Party otherwise has a voting interest, but that are not wholly owned Subsidiaries of such Party or have public equity holders, only apply (i) sellto the extent permitted by the organizational documents and governance arrangements of such entity and its subsidiaries, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); extent a Party is authorized and empowered to bind such entity and its subsidiaries and (iii) reorganize, amalgamate, merge to the extent permitted by the Party’s or otherwise continue with any other Person, corporation, partnership its Subsidiaries’ duties (fiduciary or other business organization whatsoever; (ivotherwise) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money such entity and its subsidiaries or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;its equity holders.
Appears in 2 contracts
Samples: Merger Agreement (Enbridge Inc), Merger Agreement (Enbridge Energy Partners Lp)
Interim Operations. During (a) The Company agrees that, during the period from the date of execution of this Agreement and ending on through the earlier of the Effective Time and Closing or the termination of this Agreement, except with (1) to the extent Parent shall otherwise give its prior written consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), (2) as set forth in Part 4.1(a) of the OfferorCompany Disclosure Schedule, acting reasonably, and except (3) as otherwise may be required by law applicable Legal Requirements or (4) as expressly permitted or specifically contemplated required by this Agreement:
(a) Caza covenants , the Company shall, and agrees that shall cause the Company Subsidiaries to, conduct its business shall be conducted only in the usual and ordinary course of business consistent with past practices, in all material respects and it shall use all commercially reasonable efforts to maintain and preserve intact its businessbusiness organization, assets keep available the services of key employees and advantageous business relationshipsmaintain satisfactory relationships with customers, suppliers and distributors. Caza shall consult with Without limiting the Offeror in respect foregoing, during the period from the date of its ongoing business and affairs and keep this Agreement through the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any earlier of the following:Closing or the termination of this Agreement, except (1) to the extent Parent shall otherwise give its prior consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), (2) as set forth in Part 4.1(a) of the Company Disclosure Schedule, (3) as may be required by applicable Legal Requirements or (4) as expressly permitted or required by this Agreement, the Company shall not (and shall not permit any Company Subsidiary to):
(i) amend its constating documents; the Company’s Organizational Documents or the Organizational Documents of any Company Subsidiary (other than any amendment to the Organizational Documents of any Company Subsidiary that would not reasonably be expected to be adverse to Parent or to impair, prevent or delay the consummation of any of the transactions contemplated hereby);
(ii) issue (other than on exercise or surrender of currently outstanding Caza Options)split, grantcombine, sell or pledge or agree to issuesubdivide, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to amend the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine of or reclassify any shares of its securities; the Company’s capital stock;
(v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (viiii) declare, set aside aside, make or pay any dividend or other distribution or payment (whether payable in cash shares cash, stock or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any shares of the foregoing except as otherwise permitted Company’s capital stock or contemplated by this Agreement;
the capital stock of any Company Subsidiary, other than (cA) except for transactions disclosed the Company’s regular quarterly dividend on the Company Common Stock to be declared and paid in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any first quarter of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party Company’s 2021 fiscal year only, in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent a quarterly amount not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in exceed the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants amount set forth in this Section 7.1(c); Part 4.1(a)(iii) of the Company Disclosure Schedule, or (iiiB) reorganize, amalgamate, merge dividends or otherwise continue with distributions paid by any other Person, corporation, partnership wholly owned Company Subsidiary to the Company or other business organization whatsoever; another wholly owned Subsidiary of the Company;
(iv) acquire (by merger, amalgamationconsolidation, consolidation or acquisition of shares stock or assets, formation of a joint venture or otherwise) (A) any corporationother Person, partnership (B) any equity interest in any other Person, (C) any business, or other business organization (D) any assets, except, (1) acquisitions by the Company from any wholly owned Subsidiary or division thereofamong any wholly owned Subsidiaries of the Company; (2) the purchase of equipment, or, except for investments in securities made supplies and inventory in the ordinary course of business, make any investment, either by purchase (3) inbound licenses of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except Intellectual Property in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;business or
Appears in 2 contracts
Samples: Merger Agreement (Analog Devices Inc), Merger Agreement (Maxim Integrated Products Inc)
Interim Operations. During the period from After the date of execution of this Agreement hereof and ending on prior to the earlier of Closing (unless the Effective Time and the termination of this AgreementRepresentative shall otherwise approve in writing, except with the prior written consent of the Offeror, acting reasonablysuch approval not to be unreasonably withheld or delayed, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement, and except as required by applicable Laws), the Company shall, and shall cause its Subsidiaries to, conduct the business of the Company and its Subsidiaries in the ordinary and usual course and, to the extent consistent therewith, the Company shall and shall cause the Company’s Subsidiaries to (x) use their respective reasonable best efforts to preserve the Company’s and its Subsidiaries’ business organizations intact and maintain existing relations and goodwill with all Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates, and (y) keep available the services of the Company’s and its Subsidiaries’ present employees and agents. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Closing, except (A) as otherwise expressly contemplated by this Agreement, the Purchase Agreement or the Letter Agreement, (B) as the Representative may approve in writing (such approval not to be unreasonably withheld or delayed) or (C) for transactions set forth on Schedule 3.1, the Company will not and shall cause each of its Subsidiaries not to:
(a) Caza covenants adopt or propose any change in its certificate of formation or limited liability company agreement or other applicable governing instruments;
(b) merge or consolidate with any other Person, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(c) acquire any entity or business (including by way of merger, stock purchase, asset purchase or otherwise) from any other Person, other than acquisitions pursuant to Contracts in effect as of the date of this Agreement and agrees that disclosed on the Schedules;
(d) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any LLC Interests or any shares of capital stock of the Company or any of its business shall be conducted only Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any LLC Interests or any shares of such capital stock or such convertible or exchangeable securities;
(e) create or incur any Encumbrance in excess of $5 million on any assets of the Company or any of its Subsidiaries;
(f) make any loans, advances or capital contributions to or investments in any Person, other than non-material advances to vendors and employees in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretopractice;
(bg) Caza shall notenter into any agreement with respect to the voting of its LLC Interests or declare, directly set aside, make or indirectly, do or permit to occur pay any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Cazadistribution, or securities convertible into or exchangeable or exercisable forpurchase, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase redeem or otherwise acquire any of its outstanding securitiesLLC Interests payable other than in cash, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its LLC Interests;
(h) reclassify, split or combine, directly or indirectly, any of its LLC Interests;
(i) incur any Debt (other than borrowings under the foregoing except as otherwise permitted Company’s existing debt facilities in the ordinary course of business consistent with past practice) or contemplated by guarantee Debt of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries;
(j) enter into any Contract that would have been a Material Contract had it been entered into prior to the entering into of this Agreement;
(ck) make any changes with respect to accounting policies or procedures, except as required by changes in GAAP;
(l) other than in the ordinary course of business consistent with past practice, amend, modify or terminate any Material Contract, or cancel, modify or waive any Debts or claims held by it or waive any rights;
(m) except for transactions disclosed in as set forth on Schedule 3.1(m), make any material Tax election, take any material position on any Tax Return filed on or after the Disclosure Letter, Caza will not, and will not permit any date of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or adopt any tax accounting method that is inconsistent with positions taken or methods used in preparing or filing similar Tax Returns in prior periods, or settle or resolve any material Tax controversy;
(n) other than pursuant to commitments entered into Contracts in effect prior to the date of this Agreement and disclosed on the Schedules, transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to the other party in writing lapse or expire or otherwise disclosed to the other partydispose of any assets, without the prior consent product lines or businesses of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, except for sales, leases, licenses or other partydispositions of assets with a fair market value not in excess of $100,000 in the aggregate;
(o) except as set forth on Schedule 3.1(o) or otherwise required by applicable Law, such consent not to be unreasonably withheld: (i) sellincrease the compensation, pledgebonus or pension or welfare benefits of, dispose or make any new equity-based awards to, any director, officer or employee of the Company or encumber any assets, except of its Subsidiaries (other than those increases in the ordinary course of business; business consistent with past practice to employees below the Vice President level), (ii) expend establish, adopt, amend or commit to expend terminate any amounts in respect Benefit Plan or amend the terms of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); any Benefit Plan or outstanding equity-based awards or (iii) reorganizetake any action to accelerate the vesting or payment, amalgamate, merge or otherwise continue with fund or in any other Personway secure the payment, corporationof compensation or benefits under any Benefit Plan, partnership to the extent not already required by any such Benefit Plan;
(p) settle, or consent to any settlement of, any actions, suits, claims or proceedings against the Company or any of its Subsidiaries or any obligation or liability of the Company or any of its Subsidiaries alleging any injury or damage (other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation than disputes with customers or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made suppliers in the ordinary course of businessbusiness consistent with past practice and not exceeding $50,000 per claimant);
(q) take any action or omit to take any action that will waive, make modify, compromise or extinguish any investmentof the Company’s or any of its Subsidiaries’ rights with respect to any agreements, either by purchase understandings or arrangements relating to any insurance coverage;
(r) take any action or omit to take any action that is reasonably likely to result in any of shares or securities, contributions of capital the conditions to Closing set forth in Article VI not being satisfied (other than the taking of any action required to subsidiariesbe taken under applicable Law or the omission of any action prohibited under applicable Law);
(s) enter into, property transferterminate, oramend or modify any Contract or transaction with any Affiliate, except member or other Related Party;
(t) enter into any purchase order (other than purchase orders entered into in the ordinary course of businessbusiness consistent with past practice and in an amount less than $10 million); or (u) agree, purchase authorize or commit to do any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 1 contract
Samples: Contribution Agreement (McJunkin Red Man Holding Corp)
Interim Operations. During the period from (a) The Company agrees that, between the date of execution of this Agreement and ending on the earlier of the Effective Time and the termination of this AgreementTime, except with the prior written consent of the Offeror, acting reasonably, and except (i) as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
, (aii) Caza covenants as set forth in Section 7.1(a) of the Company Disclosure Letter, (iii) as required by applicable Law, or (iv) to the extent Parent otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed), the businesses of the Company and agrees that its business the Subsidiaries shall be conducted only in all material respects in the usual and ordinary course of business consistent with past practicespractice. Without limiting the generality of the foregoing, except (A) as expressly contemplated by this Agreement, (B) as set forth in Section 7.1(a) of the Company Disclosure Letter, (C) as required by applicable Law or (D) to the extent Parent otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed), the Company agrees that neither the Company nor any Subsidiary shall, between the date of this Agreement and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectlyEffective Time, do or permit to occur any of the following:
(i) amend or restate the articles of incorporation or bylaws of the Company, or such similar organizational or governing documents of each of its constating documents; Subsidiaries;
(ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or issue, deliver, sell, transfer, dispose of, pledge or agree to issueencumber any shares of the Company’s or any of its Subsidiaries’ capital stock or equity interests, grant, sell any other voting securities or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right any rights, warrants or options to acquire, any such shares of capital stock or equity interests, voting securities or convertible securities, other than the issuance of Caza; Shares issuable upon the exercise of Company Options or upon the vesting of RSUs outstanding under the Stock Plans as of the date of this Agreement or issued as required by the employment agreements and the Stock Plans;
(iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, authorize, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock or equity interests, except for dividends paid by any direct or indirect wholly owned Subsidiary to the foregoing except as otherwise permitted Company or contemplated by this Agreementto any other direct or indirect wholly owned Subsidiary;
(civ) except for transactions disclosed in the Disclosure Letterreclassify, Caza will notcombine, and will not permit any of its subsidiaries tosplit, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, do any capital stock or equity interests of the Company or any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: its Subsidiaries;
(iv) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (ivA) acquire (including by merger, amalgamationconsolidation, consolidation or acquisition of shares stock or assetsassets or any other business combination) any corporation, partnership partnership, other business or business organization, any division or business unit thereof or any material assets, (B) incur, create, assume or otherwise become liable for any amount of Indebtedness or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or any right to acquire debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation or liable for any liability of any other individual Person other than (1) in the ordinary course of business consistent with past practice or entity(2) draws on any existing credit facility or line of credit of the Company or any of its Subsidiaries solely for working capital purposes, (C) enter into any new line of business, (D) make any loans, advances or capital contributions to, or investments in, Persons other than wholly owned Subsidiaries and other than in the ordinary course of business consistent with past practice, or (E) sell, lease, license, encumber or otherwise dispose of or transfer (by merger, consolidation, sale of stock or assets or otherwise) any amount of its assets other than in the ordinary course of business consistent with past practice;
(vi) make or commit to make any capital expenditure (not including capital expenditures for rental instruments) other than in respect of those capital expenditure projects that are (A) contemplated by the Company’s fiscal year 2012 forecast or (B) not in excess of $5,000,000 in the aggregate;
(vii) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Subsidiary (other than the Merger);
(viii) (A) increase the salary, wages, benefits, bonuses or other compensation payable or to become payable to its current or former directors, officers or Employees, except for increases required under employment agreements existing on the date hereof, (B) enter into or amend or otherwise alter any employment, change of control, retention or severance agreement with, or establish, adopt, enter into or amend any Benefit Plan (other than ordinary course changes to any ERISA plan other than severance plans), (C) except as required under any employment agreement existing on the date hereof or as may be required to implement the actions contemplated by this Agreement, including Section 4.3 and Section 7.8, accelerate the vesting or payment of any compensation or benefit under any Benefit Plan, or (D) take any action to fund the payment of compensation or benefits under any Benefit Plan, except, in the case of clauses (C) and (D), in the ordinary course of business consistent with past practice, or as may be required by the terms of any Benefit Plan in effect on the date hereof or to comply with applicable Law, including Section 409A of the Code;
(ix) unless otherwise required by Law, enter into any collective bargaining agreement or other contract with a labor union, works council or other labor organization;
(x) make any material change to its methods of accounting, principles or practices (or change an annual accounting period) in effect as of the date of this Agreement, except as required by changes in GAAP or Law or by the SEC or as recommended by the Company’s independent registered public accounting firm;
(xi) (A) make, change or rescind (or file a request to make, change or rescind) any material Tax election, (B) settle or compromise any material Tax liability, audit claim or assessment, (C) surrender any right to claim for a Tax refund, (D) change in any material respect (or file a request to make any such change) any accounting method in respect of Taxes, (E) file any amendment to an income or other material Tax Return, (F) enter into any closing agreement, settle or compromise any material claim or material assessment in respect of Taxes, or (G) consent to any extension or waiver of the statute of limitations applicable to any claim or assessment in respect of Taxes, except, in each case, as required by Law;
(xii) write up, write down or write off the book value of any of its material assets, other than (A) in the ordinary course of business and consistent with past practice or (B) as may be required by GAAP;
(xiii) (A) waive, settle, satisfy or compromise any claim against the Company (which shall include any pending or threatened action), except to the extent subject to reserves existing on the date of this Agreement, or (B) waive, settle, satisfy or compromise any material claim by the Company, except in the ordinary course of business consistent with past practice;
(xiv) other than in the ordinary course of business consistent with past practice and on terms not materially adverse to the Company and the Subsidiaries taken as a whole, enter into, amend, modify, cancel, waive any rights under or consent to the termination of any Material Contract or any Contract that would be a Material Contract if in effect on the date of this Agreement;
(xv) enter into, renew or amend in any material respect any transaction, Contract, arrangement or understanding between the Company or any Subsidiaries, on the one hand, and any Affiliate of the Company (other than any of the Company’s Subsidiaries), on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, except for any agreement, renewal or amendment made in the ordinary course of business consistent with past practice or contemplated by the Company’s fiscal year 2012 budget;
(xvi) (A) assign, transfer, license or sublicense, mortgage or encumber any material Intellectual Property owned by the Company or any of its Subsidiaries, except for non-exclusive licenses or non-exclusive sublicenses of such Intellectual Property in the ordinary course of business consistent with past practice, or (B) fail to pay any fee, take any action, protect any trade secret, or make any loans filing reasonably necessary to maintain its ownership of the material Intellectual Property owned by the Company or advances;any of its Subsidiaries; or
(xvii) agree in writing to do any of the foregoing.
(b) Without the prior written consent of the Company, Parent and Merger Sub shall not, and shall cause the Guarantor and their respective Affiliates to not, (i) enter into discussions or negotiations regarding any Contracts or arrangements or understandings (whether oral or written) or commitments to enter into Contracts, arrangements or understandings (whether oral or written) or (ii) amend or otherwise supplement any Contracts, arrangements or understandings (whether oral or written) in existence on the date of this Agreement, in the case of clauses (i) and (ii) that are between Parent, Merger Sub, the Guarantor or any of their Affiliates, on the one hand, and any officer or director of the Company or any of its Subsidiaries, on the other hand.
(c) If the Company identifies any activities of the Company or any of its Subsidiaries, including those activities of their respective directors, officers, managers, employees, independent contractors, representatives or agents, that the Company reasonably believes to be in violation of the FCPA, the Company shall use reasonable best efforts to cause each of its Subsidiaries and Affiliates to cease such activities and take any additional remedial action reasonably requested by Parent or that the Company reasonably deems appropriate under the circumstances.
Appears in 1 contract
Samples: Merger Agreement (Immucor Inc)
Interim Operations. During the period from (a) The Company covenants and agrees that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing (such approval not to be unreasonably withheld, except with the prior written consent of the Offeror, acting reasonablydelayed or conditioned)), and except as otherwise expressly required or permitted by this Agreement or as required by law a Governmental Entity or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants applicable Laws, it shall and agrees that its business Subsidiaries shall be conducted only conduct their businesses in all material respects in the usual and ordinary course of business consistent with past practicespractice and, to the extent consistent with the foregoing, the Company and it its Subsidiaries shall use all their respective commercially reasonable efforts to preserve their business organizations substantially intact, maintain in effect all of its material Licenses and preserve its businesssatisfactory relationships with Governmental Entities, assets employees and advantageous customers and suppliers having significant business relationships. Caza shall consult dealings with the Offeror in respect of its ongoing them (and other material business and affairs relations) and keep available the Offeror apprised services of all material developments relating thereto;
their key employees; provided, however, that no action taken by the Company or its Subsidiaries with respect to matters specifically addressed by clauses (bi)-(xxi) Caza of this Section 6.1(a) shall not, directly or indirectly, do or permit to occur any be deemed a breach of this sentence unless such action would constitute a breach of such other provision. Without limiting the generality of the followingforegoing, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or permitted by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld, delayed or conditioned), (C) as is required by applicable Law or any Governmental Entity or (D) as set forth in Section 6.1(a) of the Company Disclosure Schedule, the Company will not and will not permit its Subsidiaries to:
(i) amend its constating documents; adopt any change in the certificate of incorporation, bylaws or organizational documents of the Company of any Significant Subsidiary;
(ii) issue merge or consolidate the Company or any of its Subsidiaries with any other Person (provided that, for the avoidance of doubt, nothing in this Section 6.1(a)(ii) shall prohibit any Subsidiary of the Company from merging or consolidating with any other Subsidiary of the Company);
(iii) make any acquisition of any business of any other Person, whether by way of stock purchase, asset purchase, merger or otherwise, that would (A) be material to the Company and its Subsidiaries, taken as a whole, or (B) be for consideration (including by assumption of indebtedness) in excess of $10,000,000 in the aggregate for all such stock purchases, asset purchases, mergers or other transactions;
(iv) make any material capital contributions or investments (including through any loans or advances) in any Person (other than on exercise the Company or surrender any direct or indirect wholly-owned Subsidiary of currently outstanding Caza Options)the Company) except for the management of the cash of the Company and its Subsidiaries in all material respects in the ordinary course;
(v) make any capital expenditures in any quarter that exceeds six percent of revenues for such quarter in the aggregate for the Company and its Subsidiaries taken as a whole;
(vi) except in the ordinary course of business or to the Company or any of the Company’s Subsidiaries, sell, assign, transfer, lease, license or otherwise dispose of, or agree to sell, assign, transfer, lease, license or otherwise dispose of, any of the material fixed assets of the Company or any of its Subsidiaries having a value in excess of $15,000,000;
(vii) issue, transfer, dispose of, sell, pledge, grant, sell lease, license, guarantee or pledge encumber (or agree to issuemake payments based on the value of), or authorize the issuance, transfer, disposal of, sale, pledge, grant, sell lease, license, guarantee or pledge encumbrance (or making of payments based on the value) of, any shares of capital stock or other equity securities or interests of Caza, the Company or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securitiesSubsidiaries (other than (A) the issuance of Shares upon the exercise, vesting or settlement of Options and RSUs or PSUs under the Company Stock Plans or (B) the issuance of shares or other equity securities by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary) or Contingent Company Equity (for purposes of this Section 6.1(a)(vii), read to include equity securities or interests of any Subsidiary of the Company);
(viii) incur, offer, place, arrange, syndicate, assume, guarantee, prepare or otherwise become liable for any Indebtedness (directly, contingently or otherwise), except as permitted pursuant to for (A) Indebtedness among the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify Company and any of its securities; wholly-owned Subsidiaries or among any of such Subsidiaries, (vB) adopt a plan guarantees by the Company of liquidation Indebtedness of Subsidiaries of the Company, which Indebtedness is incurred in compliance with this Section 6.1, (C) capital leases entered into by the Company and its Subsidiaries in the ordinary course of business, (D) Indebtedness incurred in connection with letters of credit and forward currency contracts issued or resolutions providing entered into in the ordinary course of business consistent with past practice in all material respects and (E) Indebtedness for an amount not in excess of $5,000,000 in the liquidation, dissolution, merger, consolidation or reorganization of Caza; aggregate outstanding at any one time;
(viix) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (except dividends paid by any direct or indirect Subsidiary of the foregoing Company), or repatriate any material amount of cash as a dividend from Subsidiaries outside of the United States except as in connection with the repayment of any intercompany loans or otherwise permitted or contemplated by this Agreementin the ordinary course of business consistent with past practice in all material respects;
(cx) except for transactions disclosed in among the Disclosure LetterCompany and its direct or indirect wholly-owned Subsidiaries or among the Company’s direct or indirect wholly-owned Subsidiaries, Caza will notreclassify, and will not permit any of its subsidiaries tosplit, combine, subdivide or redeem, repurchase, purchase or otherwise acquire, directly or indirectly, do any of its capital stock or Contingent Company Equity (for purposes of this Section 6.1(a)(x), read to include equity securities or interests of any Subsidiary of the following Company) (other than the acquisition of any Shares, Options, RSUs or PSUs tendered by current or former employees or directors in order to pay Taxes or the exercise price in connection with the exercise, vesting or settlement of Options, RSUs, PSUs and other awards under the Company Stock Plans;
(xi) make any material changes with respect to its methods of accounting except as contemplated required by this Agreement applicable Law or by changes in GAAP, or make any material changes to the Company’s or its Subsidiaries’ transfer pricing practices or policies except in the ordinary course of business;
(xii) other than Transaction Litigation, which is addressed in Section 6.15, settle, release, waive or compromise any litigation claim, or other pending or threatened proceedings by or before a Governmental Entity if such settlement, release, waiver or compromise (A) with respect to the payment of monetary damages, involves the payment by the Company or any of its Subsidiaries of monetary damages exceeds $2,000,000 individually or $5,000,000 in the aggregate or (B) with respect to any non-monetary terms and conditions therein, imposes or requires actions that would or would be reasonably expected to be material to the Company and its Subsidiaries, taken a whole;
(xiii) (x) modify, amend, terminate or expressly waive any rights or claims under any Material Contract (other than renewal of Contracts that have otherwise expired pursuant to commitments their terms in the ordinary course of business) in any respect in a manner which is materially adverse to the Company, other than in the ordinary course of business consistent with past practice in all material respects, or (y) enter into any new Contract that (A) would have been considered a Material Contract if it were entered into prior to the date of this Agreement and disclosed to the Agreement, other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except than in the ordinary course of business; business consistent with past practice in all material respects or (iiB) expend contains a change of control or commit similar provision in favor of the other party or parties thereto that would require a material payment to expend or give rise to any amounts material rights to such other party or parties in respect connection with the consummation of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror Merger (including in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue combination with any other Personevent or circumstances) or any subsequent change of control of the Company or any of its Subsidiaries, corporationexcept, partnership in the case of clauses (x) and (y)(A), with respect to Material Contracts that are (or would be) covered by subclauses (C), (E)(II)(a) and (L) of Section 5.1(t)(i), in which case, no such action shall be taken without Parent’s prior consent;
(xiv) disclose any material trade secrets of the Company of any of its Subsidiaries other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than pursuant to agreements entered into in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital business consistent with past practice that contain confidentiality undertakings with respect to such trade secrets;
(xv) other than to subsidiaries), property transfer, or, except in the ordinary course of businessbusiness or to the extent required by Law (A) make any material Tax election not consistent with past practice, purchase (B) file any property material amended Tax Return that would reasonably be expected to have the effect of materially increasing the Tax liability of the Company or assets any of its Subsidiaries, (C) change any material method of Tax accounting or change any annual income Tax accounting period, (D) settle or compromise any material Tax proceeding or assessment, (E) enter into any “closing agreement” within the meaning of Code Section 7121 (or any similar provision of state, local or non-U.S. Law) with respect to a material amount of Taxes, (F) surrender any right to claim a material refund of Taxes, or (G) consent to any extension or waiver of the statute of limitations applicable to any material Tax claim or assessment;
(xvi) except as required pursuant to a Benefit Plan as in effect immediately prior to the date of this Agreement or as otherwise required by applicable Law, (A) grant or provide any severance, change of control or termination or similar payments or benefits to any Company Employees, (B) enter into any employment, change of control, severance or retention agreements with any Company Employee, (C) increase the compensation or benefits (including any severance, change of control, termination or similar compensation or benefits) payable or provided to any Company Employee or director, except increases in base salaries or base wage rates for Company Employees with total annual base salary or base wages not in excess of $200,000 (provided that any such increase is (1) in the ordinary course of business consistent with past practice, (2) no greater than 10% of the Company Employee’s base salary or base wages as in effect immediately prior to such increase and (3) consistent with Section 6.1(a)(xvi) of the Company Disclosure Schedule), (D) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Company Stock Plan or Benefit Plan, (E) establish, adopt, terminate or amend any Company Stock Plan, Benefit Plan or any plan, program, arrangement, policy or agreement that would be a Company Stock Plan or Benefit Plan if it were in existence on the date hereof, other than modifications to any Benefit Plans that are health and welfare plans during the Company’s open enrollment processes that are in the ordinary course of business consistent with past practice, (F)(i) hire any Person to be employed by the Company or any of its Subsidiaries or terminate the employment of any Company Employee (other individual than “for cause”), other than the hiring or entity; firing of employees with annual base salary or base wages not in excess of $200,000 (vprovided that any such actions are in the ordinary course of business consistent with past practice) incur or (ii) take or omit to take any indebtedness for borrowed money actions that could cause any Covered Individual who has not executed a waiver letter relating to the definition of “change in control” in his or her change in control severance or similar agreement with the Company to have “Good Reason” (as defined in the applicable Benefit Plan) to terminate such individual’s employment with the Company Group, or (G) enter into any collective bargaining agreement or any similar material agreement with any labor organization, works council, trade union, labor association, or other employee representative);
(xvii) abandon, permit to lapse, assign, sell, license (including sublicense), transfer, or otherwise dispose of any Intellectual Property, other than (A) non-exclusive licenses of Intellectual Property granted in the ordinary course of business consistent with past practice, and (B) abandonment of any pending Registered Intellectual Property during the course of prosecution or any other Intellectual Property that is not material liability to the Company’s business, in each case, in the ordinary course of business consistent with past practice;
(xviii) implement any facility closings or obligation employee layoffs that do not comply with the WARN Act if the WARN Act is applicable to such layoff;
(xix) adopt a plan or issue agreement of complete or partial liquidation or dissolution of the Company or any debt securities of its Significant Subsidiaries (other than the Merger);
(xx) enter into or assumeamend any Interested Party Transaction; or
(xxi) agree, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, authorize or make any loans commitment, in writing or advances;otherwise, to do any of the foregoing.
(b) Nothing contained in this Agreement gives, or is intended to give Parent, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and subject to the conditions of this Agreement, including Section 6.1, complete control and supervision over the Company’s and its Subsidiaries’ operations.
Appears in 1 contract
Samples: Merger Agreement (International Rectifier Corp /De/)
Interim Operations. During (a) Except as (x) required by applicable Law, (y) otherwise expressly contemplated or expressly required by this Agreement or (z) otherwise set forth in Section 6.1 of the period Company Disclosure Letter, the Company covenants and agrees that, after the date hereof and prior to the Effective Time, the Company shall, and shall cause its Subsidiaries to, (i) conduct their business (A) in the ordinary course and (B) in compliance in all material respects with all applicable Laws and all Material Contracts, and (ii) use their respective reasonable best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, landlords, creditors, licensors, licensees, officers, employees and business associates.
(b) Without limiting the generality of the foregoing and in furtherance thereof, from the date of execution of this Agreement and ending on the earlier of until the Effective Time and the termination of Time, except as (A) required by applicable Law, (B) otherwise expressly contemplated or expressly required by this Agreement, except with the prior written consent (C) Parent may approve in writing (such approval not to be unreasonably withheld, delayed or conditioned) or (D) set forth in Section 6.1(b) of the OfferorCompany Disclosure Letter, acting reasonably, the Company will not and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that will not permit its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the followingSubsidiaries to:
(i) amend adopt any change in its constating documents; certificate of incorporation or bylaws or other applicable governing instruments;
(ii) issue (merge or consolidate with any other than on exercise Person or surrender restructure, reorganize or completely or partially liquidate the Company or any of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; its Subsidiaries;
(iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamationconsolidation, consolidation or acquisition of shares stock or assetsassets (or otherwise) any corporation, partnership or other business organization or division thereofany property or assets other than the purchase of assets in the ordinary course of business;
(iv) issue, orsell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guaranty or encumbrance of, any shares of capital stock of the Company or any its Subsidiaries (other than the issuance of Common Shares upon the exercise of Company Options, the vesting of Company RSUs or pursuant to the ESPP), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company) in excess of $25,000 in the aggregate, other than (A) lines of credit extended to the Company’s customers in the ordinary course of business consistent with past practices, (B) advancements of legal fees, costs and expenses to the Company’s or its Subsidiaries’ directors and officers pursuant to Existing Indemnification Obligations and (C) advances to employees in the ordinary course of business for travel and other out-of-pocket expenses;
(vi) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than the acquisition of any Common Shares tendered by current or former employees or directors in order to pay Taxes in connection with the exercise of Company Options or the vesting of Company RSUs);
(viii) prepay or incur any indebtedness for borrowed money or guarantee such indebtedness of another Person (other than a wholly owned Subsidiary of the Company), or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for investments indebtedness for borrowed money under the Company Credit Agreements in securities made the ordinary course of business consistent with past practices;
(ix) except as set forth in the current capital forecast set forth in Section 6.1(b)(ix) of the Company Disclosure Letter, make or authorize any capital expenditures in excess of $50,000 in the aggregate;
(x) make any material changes with respect to any method of Tax or financial accounting policies or procedures, except as required by changes in GAAP or Law or by a Governmental Entity;
(xi) other than in the ordinary course of business and subject to Section 6.15, settle or compromise any litigation, audit, claim or action against the Company or any of its Subsidiaries in excess of $15,000 individually or in any matter that would materially interfere with the Company’s operations or business;
(xii) other than in the ordinary course of business or to the extent required by Law, make any material Tax election, file any material amended Tax Return, settle or compromise any material Tax liability, enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund;
(xiii) other than pursuant to existing obligations under any Contracts in effect as of the date hereof, transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, product lines or businesses of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, with a value in excess of $50,000 in the aggregate, except for (A) sales and non-exclusive licenses of products and services of the Company and its Subsidiaries in the ordinary course of business, (B) transfers among the Company and its wholly owned Subsidiaries, (C) any pledges of assets required by the Company Credit Agreements and (D) dispositions to customers of obsolete or slow-moving inventory, equipment or other assets that are substantially reserved against in the Company’s financial statements filed in the Company Reports prior to the date hereof;
(xiv) except pursuant to existing obligations under any Contracts or Benefit Plans in effect as of the date hereof, (A) grant or provide any severance or termination payments or benefits to any director, consultant or employee of the Company or any of its Subsidiaries, except, in the case of employees who are not management-level employees, in the ordinary course of business consistent with past practices, (B) increase in any manner the compensation or bonus of, or make or amend in any investmentrespect any equity awards under any Benefit Plan to, either by purchase or grant any bonuses to, any director, consultant or employee of shares the Company or securitiesany of its Subsidiaries, contributions except, in the case of capital employees who are not management level employees of the Company in the ordinary course of business consistent with past practices, (C) establish, adopt, terminate or amend any Benefit Plan (other than as may be required under Law or routine changes to subsidiaries)welfare plans) or accelerate the vesting of any compensation for the benefit of any Person, property transferor (D) establish, oradopt, except enter into or amend any collective bargaining agreement;
(xv) license any Intellectual Property other than in the ordinary course of business;
(xvi) (A) disclose any confidential information relating to any material Intellectual Property, purchase except pursuant to the issuance of a patent or subject to a confidentiality agreement, or (B) allow any property lapse or assets abandonment of any other individual or entity; (v) incur any indebtedness for borrowed money material Intellectual Property, or any other material liability registration or obligation grant thereof, or issue any debt securities application related thereto to which, or assume, guarantee, endorse or otherwise as an accommodation become responsible forunder which, the obligation Company or any Subsidiary has any ownership rights;
(xvii) enter into any arrangements relating to any royalty or similar payment based on the revenues, profits or sales volume of the Company or any Subsidiary, whether as part of the terms of the capital stock of the Company or any Subsidiary or by any separate agreement;
(xviii) enter into any transactions with any Affiliate of the Company (other individual than any of its Subsidiaries) other than the agreements and transactions expressly contemplated by this Agreement;
(xix) enter into any Material Contracts containing covenants of the Company or entityany of its Subsidiaries purporting to limit in any material respect any line of business, industry or geographical area in which the Company or its Subsidiaries may operate or granting material exclusive rights to the counterparty thereto;
(xx) take any action (or omit to take any action) if such action (or omission) would, or would be reasonably like to, result in any representation or warranty of the Company set forth in this Agreement becoming untrue; or
(xxi) agree, authorize or commit to do any of the foregoing.
(c) Neither Parent nor Merger Sub shall knowingly take or permit any of their Affiliates to take any action that is reasonably likely to prevent or delay the consummation of the Merger or result in any representation or warranty of Parent or Merger Sub set forth in this Agreement to become untrue.
(d) Nothing contained in this Agreement is intended to give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time, and nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations. Prior to the Effective Time, each of Parent and the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
(e) Notwithstanding anything herein to the contrary, neither the Company nor any of its Subsidiaries shall be permitted to make any loans or advances;commit to make the payment set forth in Section 5.1(r) of the Company Disclosure Letter.
Appears in 1 contract
Interim Operations. During (a) The Company covenants and agrees as to itself and its Subsidiaries that, from and after the period from the date of execution of this Agreement and ending on the earlier of prior to the Effective Time and (unless Parent shall otherwise approve in writing (it being agreed that in the termination event the Company seeks such consent regarding COVID-19 Measures that are reasonably designed to protect the health or welfare of this Agreementemployees or other relevant individuals (as expressly noted in such request by the Company), except with Parent’s consent shall not be unreasonably withheld, conditioned or delayed; provided, that if Parent’s failure to respond in a timely manner would reasonably be expected to jeopardize the prior written health or welfare of employees or other relevant individuals, Parent shall be deemed to have consented to such act or omission if it fails to expressly consent to or deny consent for such requested actions or inactions within one (1) Business Day of the Offeror, acting reasonably, such request) and except as otherwise (i) required by law or applicable Law, (ii) expressly permitted or specifically contemplated required by this Agreement:
Agreement or (aiii) Caza covenants and agrees that otherwise expressly disclosed in Section 6.1 of the Company Disclosure Letter), the Company shall use its commercially reasonable efforts to (A) conduct its business shall be conducted only and the business of its Subsidiaries in the usual and ordinary course of business consistent with past practicespractice and (B) maintain the status of the Company as a “real estate investment trust” within the meaning of Sections 856 through and including 860 of the Code (a “REIT”) for all taxable periods ending on or prior to the Closing Date. Without limiting the generality of, and it in furtherance of, the foregoing, the Company covenants and agrees as to itself and its Subsidiaries that, from and after the date of this Agreement and prior to the Effective Time, except as (w) required by applicable Law, (x) Parent may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed with respect to clauses (iv), (vi), (viii), (ix), (xiii), (xiv), (xvi), (xviii) or (xix)), (y) expressly disclosed in Section 6.1 of the Company Disclosure Letter or (z) expressly provided for in this Agreement, the Company shall use all commercially reasonable efforts to maintain not and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect will not permit any of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the followingSubsidiaries to:
(i) amend (A) amend, supplement or otherwise modify its constating articles of incorporation or bylaws (or comparable governing documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (ivB) split, combine combine, subdivide or reclassify its outstanding shares of capital stock (except for any such transaction by a wholly owned Subsidiary of its securities; the Company which remains a wholly owned Subsidiary after consummation of such transaction), (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (viC) declare, set aside or pay any dividend or other distribution payable in cash, stock or payment property (whether in cash shares or propertyany combination thereof) in respect of any shares of its outstanding securities without the consent capital stock (other than (1) any dividends or distributions paid by a direct or indirect wholly owned Subsidiary of the OfferorCompany (other than a Taxable REIT Subsidiary) to another direct or indirect wholly owned Subsidiary of the Company or to the Company, which consent (2) any distributions of the Company and its Subsidiaries, including under Sections 857, 858 or 860 of the Code, as may be withheld reasonably necessary to (x) maintain the status of the Company as a REIT or (y) avoid or reduce the imposition of any corporate level Tax or excise Tax under the Code and (3) dividend equivalents payable upon the vesting or settlement of Company Director-Granted RSUs, Company Service-Based RSUs and Company Market-Based RSUs) outstanding on the date of this Agreement in accordance with the terms of such awards and the terms of the Company Stock Plans in effect on the date of this Agreement, (D) enter into any agreement with respect to the voting of its capital stock or (E) purchase, repurchase, redeem or otherwise acquire any shares of its capital stock or any securities convertible or exchangeable into or exercisable for any shares of its capital stock, other than (I) pursuant to the cashless exercise of Company Options or the forfeiture of, or withholding of Taxes with respect to, Company Options, Company Director-Granted RSUs, Company Service-Based RSUs or Company Market-Based RSUs in connection with any Taxable event related to such awards, in each case, in accordance with past practice and with the terms of the applicable Company Stock Plan as in effect on the date of this Agreement or (II) purchases, repurchases, redemptions or other acquisitions of securities of any wholly owned Subsidiary of the Company by the Company or any other wholly owned Subsidiary of the Company;
(ii) merge or consolidate with any other Person, or restructure, reorganize or completely or partially liquidate;
(A) except as required by the terms of a Company Plan, (1) modify the compensation or benefits payable to any current or former employee, director or individual service provider of the Company or any of its Subsidiaries with an annual base salary greater than $100,000, (2) materially modify the compensation or benefits payable to any current or former employee, director or individual service provider of the Company or any of its Subsidiaries with an annual base salary less than $100,000 or (3) become a party to, establish, adopt, amend, terminate, provide discretionary benefits under or make any change to any Company Plan or any arrangement that would have been a Company Plan had it been entered into prior to the date of this Agreement, other than related to annual plan renewals in the Offerorordinary course of business or (B) grant or make any bonus or other payment to any employee, director, executive officer or individual service provider of the Company or any of its Subsidiaries;
(iv) hire any employees with an annual base salary greater than $100,000, other than any non-officer employees that are hired to replace any employees that were terminated or that resigned and that are provided total compensation and benefits substantially similar, in the aggregate, to the terminating employees being replaced;
(v) incur any Indebtedness or issue any warrants or other rights to acquire any Indebtedness, except (A) under the Existing Credit Facilities or the Revolving Promissory Note (as defined in Section 5.1(f)(ii) of the Company Disclosure Letter), (B) inter-company Indebtedness among the Company and its wholly owned Subsidiaries, (C)(1) Financial Assurances, so long as promptly reimbursed if drawn and (2) overdraft facilities or cash management programs, in each case issued, made or entered into in the ordinary course of business and (D) hedging in compliance with the hedging strategy of the Company as of the date of this Agreement in the ordinary course of business consistent with past practice and not for speculative purposes; provided, that the Company and its Subsidiaries shall use commercially reasonable efforts to mitigate any material increase in their respective aggregate exposure to currency risk;
(vi) make or commit to any capital expenditures other than in the ordinary course of business consistent with past practice and which do not exceed, in the aggregate, for the period between the date hereof and the Effective Time, one hundred and twenty (120%) of the amounts per line item reflected for such period in the Company’s sole monthly capital expenditure projections for 2020 (pro-rated for any partial months during such period) and absolute discretion; or the provisional capital expenditure projections for the first two quarters of 2021, in each case which are set forth in Section 6.1(a)(vi) of the Company Disclosure Letter;
(vii) enter into or modify any contract, agreement, commitment or arrangement other than with respect to (A) Contracts related to any REO Properties and (B) other Company Properties that are set forth in Section 6.1(a)(vii) of the Company Disclosure Letter, in each case so long as such transactions are on bona fide, commercial, arms’ length terms to an unaffiliated party, transfer, lease (other than renewals and single-family home leases with tenants in the ordinary course of business consistent with past practice), license, sell, assign, mortgage, pledge, place a Lien (other than Permitted Liens) upon or otherwise dispose of any properties or assets (including capital stock of any of its Subsidiaries but not including any Intellectual Property), with a fair market value in excess of $200,000 individually or $2,000,000 in the aggregate (other than transactions among the Company and its wholly owned Subsidiaries), subject in all respects to any restrictions that secure any of the foregoing Existing Credit Facilities other than to the extent the disposition thereof is not prohibited by the relevant Existing Credit Facility; provided, that other than with respect to properties or assets referred to in clauses (A) and (B) above, the Company shall promptly (and in any event within twenty-four (24) hours) deliver to Parent written notice of any license, sale, assignment, mortgage, pledge, or other disposition of any Company Properties;
(viii) issue, deliver, sell, grant, transfer, or encumber (other than Permitted Liens), or authorize the issuance, delivery, sale, grant, transfer or encumbrance (other than Permitted Liens) of, any shares of its capital stock or any securities convertible or exchangeable into or exercisable for, or any options, warrants or other rights to acquire, any such shares, except (A) for any Shares issued pursuant to Company Options, Company Director-Granted RSUs, Company Service-Based RSUs and Company Market-Based RSUs outstanding on the date of this Agreement in accordance with the terms of such awards and the Company Stock Plans, and (B) by wholly owned Subsidiaries to the Company or to any other wholly owned Subsidiary of the Company;
(ix) acquire any business or assets or other property, whether by merger, consolidation, purchase of property or assets or otherwise;
(x) make any material change with respect to its financial accounting policies or procedures, except as otherwise permitted required by changes in GAAP (or contemplated any interpretation thereof) or by applicable Law;
(xi) enter into any new line of business or start to conduct a line of business of the Company or any of its Subsidiaries that is not conducted as of the date of this Agreement;
(cxii) except for transactions disclosed in the Disclosure Lettermake any loans, Caza will not, and will not permit any of its subsidiaries advances or capital contributions to, directly or indirectlyinvestments in, do any Person (other than loans, advances or capital contributions to the Company or any direct or indirect wholly owned Subsidiary of the following Company);
(xiii) (A) amend or modify in any material respect or terminate (excluding terminations upon expiration of the term thereof or upon default by any other than as contemplated by this Agreement party thereto, in each case, in accordance with the terms thereof) any Material Contract or pursuant waive, release or assign any material rights, claims or benefits under any Material Contract or take (or fail to commitments take) any action that would reasonably be expected to cause or result in a material breach of, or material default under, any Material Contract or (B) enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement and disclosed unless it is on terms substantially consistent with, or on terms more favorable to the other party Company or its Subsidiaries (and to Parent and its Subsidiaries following the Closing) than, either a Contract it is replacing or a form of such Material Contract made available to Parent and Merger Sub; provided, that this Section 6.1(a)(xiii) shall not prohibit or restrict any action in respect of the Existing Credit Facilities as provided for in Section 6.20;
(xiv) (A) settle any Proceeding before or threatened in writing to be brought before a Governmental Entity, other than settlements if the amount of any such settlement is not in excess of $250,000 individually or otherwise disclosed $1,000,000 in the aggregate with other settlements entered into between the date hereof and the Effective Time; provided, that such settlements do not involve any non-de minimis injunctive or equitable relief or impose non-de minimis restrictions on the business activities of the Company and its Subsidiaries or Parent and its Subsidiaries or (B) waive any material right with respect to any material claim held by the Company or any of its Subsidiaries;
(xv) enter into any collective bargaining agreement or recognize or certify any labor union, labor organization or other employee representative body as the bargaining representative for any employees of the Company or any of its Subsidiaries;
(xvi) make, change or revoke any material Tax election or change a material method of Tax accounting, amend any material Tax Return, settle or compromise any material Tax liability, audit, proceeding, claim or assessment, enter into any Tax allocation, sharing or indemnity agreement (other than customary provisions in agreements or arrangements the primary subject of which is not Taxes), enter into any closing agreement in respect of material Taxes, seek or request any material Tax ruling from a Governmental Entity, file any material Tax Return inconsistent with past practice other than as required by applicable Law or contribute any assets to a Taxable REIT Subsidiary (other than any assets that are expected to be sold prior to the Closing Date and are otherwise permitted to be sold prior to the Closing Date pursuant to the terms of this Agreement);
(xvii) take any action, or fail to take any action, which action or failure to act would reasonably be expected to cause (A) the Company to fail to qualify as a REIT or (B) any other party, without the prior consent Subsidiary of the other partyCompany to fail to preserve its status as set forth in Section 5.1(b)(iv) of the Company Disclosure Letter;
(xviii) terminate, cancel or make any material changes to the structure, limits or terms and conditions of any of its insurance policies, including allowing the policies to expire without renewing such consent not policies or obtaining comparable replacement coverage, or prejudicing rights to be unreasonably withheld: insurance payments or coverage;
(ixix) sell, pledgeassign (other than Permitted Liens), dispose transfer or exclusively license any material Intellectual Property owned by the Company or any of its Subsidiaries, or encumber permit the lapse of any assetsright, except title or interest to any such material Intellectual Property, including any material Registered IP, in each case, other than in the ordinary course of business; or
(iixx) expend agree, resolve or commit to expend do any amounts of the foregoing.
(b) The Company covenants and agrees as to itself and its Subsidiaries that, from and after the execution of this Agreement and prior to the Effective Time, each such Person shall comply with the covenants set forth on Section 6.1(b) of the Company Disclosure Letter. Notwithstanding the foregoing, nothing in respect this Section 6.1 shall prohibit the Company or any of capital expensesits Subsidiaries from taking any action or refraining from taking any action, excluding certain expenditures which may be agreed to, at any time or from time to time, by that in the Offeror reasonable judgment of the board of directors of the Company, upon written advice of nationally recognized REIT Tax counsel, is reasonably necessary for the Company to avoid incurring entity-level U.S. federal income or U.S. federal excise Taxes under the Code or to maintain its qualification as a REIT for any period or portion thereof ending on or prior to the Effective Time, including making dividend or other distribution payments to stockholders of the Company in writing, which for greater certainty, shall not be accordance with this Agreement (subject to the covenants restrictions set forth in this Section 7.1(c6.1(a)(i)(C)); (iii) reorganizeprovided, amalgamate, merge or otherwise continue with that prior to taking any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible forsuch action, the obligation Company and its Subsidiaries shall inform Parent in writing of any other individual or entity, or make any loans or advances;such action and shall consult with and cooperate with Parent in good faith to minimize the adverse effect of such action to the Company and Parent.
Appears in 1 contract
Interim Operations. During the period from (a) From the date of execution of this Agreement and ending on until the earlier of the Effective Time and the termination of this AgreementAgreement in accordance with its terms, the Company covenants and agrees as to itself and its Subsidiaries that, from the date of this Agreement until the Effective Time, the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practice and, to the extent consistent therewith, it and its Subsidiaries shall use their respective reasonable best efforts to (x) preserve intact their business organizations, assets and lines of business and (y) maintain its and their existing relations and goodwill with Governmental Entities, customers, suppliers, employees and agents. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except with the prior written consent of the Offeror, acting reasonably, and except (A) as otherwise expressly required by law or expressly permitted or specifically contemplated by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld), (C) as required by applicable Laws or definitive interpretations thereof or by any Governmental Entity or (D) as set forth in Section 4.1(a) of the Company Disclosure Letter, the Company will not, and will not permit its Subsidiaries, to:
(ai) Caza covenants and agrees that adopt any amendments to its business shall be conducted only charter or bylaws or, in the usual and case of any Subsidiary that is not a corporation, similar applicable organizational documents;
(ii) (A) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, business combination, restructuring, recapitalization or other reorganization (other than this Agreement), (B) acquire by merging or consolidating with, or by purchasing an equity interest in or portion of the assets of (other than as set forth in Section 4.1(a)(iii)), or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, (C) take or omit to take any action that would cause any rights under Material Intellectual Property, including with respect to any registrations or applications for registration, to lapse, be abandoned or canceled, or fall into the public domain, other than actions or omissions in the ordinary course of business consistent with past practices, practice and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous not otherwise in violation of this Section 4.1 or (D) enter into a joint venture or partnership or similar third-party business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoenterprise;
(biii) Caza shall not, directly or indirectly, do or permit to occur any acquire assets outside of the following:ordinary course of business or capital stock from any other Person, other than (A) acquisitions of assets at or below fair market value with a purchase price not in excess of $500,000 individually or $2,000,000 in the aggregate, in each case for any transaction or series of related transactions, and capital expenditures permitted by clause (x) of this Section 4.1 and (B) acquisitions pursuant to the Contracts in effect as of the date of this Agreement set forth on Section 4.1(a) of the Company Disclosure Letter;
(iiv) amend issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any shares of capital stock of the Company or any its constating documents; (ii) issue Subsidiaries (other than (A) the issuance of Shares upon the exercise of Company Options and the settlement of Restricted Shares, Restricted Stock Units, and Performance Stock Units (and dividend equivalents thereon, if applicable) outstanding on exercise the date of this Agreement or surrender (B) the issuance of currently outstanding Caza Options), grant, sell shares of capital stock by a Subsidiary of the Company to the Company or pledge or agree to issue, grant, sell or pledge any securities another Subsidiary of Caza, the Company) or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible, exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; ;
(v) adopt a plan make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect Subsidiary of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; Company);
(vi) (A) declare, set aside or pay any dividend or other distribution distribution, whether payable in cash, stock or payment other property, with respect to its capital stock, except for dividends by any wholly owned direct or indirect Subsidiary of the Company to the Company or any other wholly owned direct or indirect Subsidiary of the Company, (whether in cash shares B) split, combine or property) reclassify the Shares or any other outstanding capital stock of the Company or any of the Subsidiaries of the Company or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution therefor (other than issuances to the Company or another wholly owned Subsidiary of the Company), (C) redeem, purchase or otherwise acquire, directly or indirectly, any capital stock or other Rights of the Company or any of its outstanding Subsidiaries, except for acquisitions, or deemed acquisitions, of Shares or other equity securities without the consent of the OfferorCompany in connection with (1) the satisfaction of Tax withholding obligations with respect to Company Options, which consent may be withheld Restricted Shares, Restricted Stock Units or Performance Stock Units outstanding on the date of this Agreement, (2) the payment of the exercise price of Company Options outstanding on the date of this Agreement with Shares (including in connection with “net exercises”) and (3) forfeitures of Company Options, Restricted Shares, Restricted Stock Units or Performance Stock Units, in each case, outstanding on the Offeror’s sole date of this Agreement, pursuant to their terms as in effect on the date of this Agreement, and absolute discretion; except for acquisitions or deemed acquisitions of Shares or other equity securities of the Company or any of its wholly owned Subsidiaries by the Company or any of its wholly owned Subsidiaries, or (viiD) enter into or modify any contract, agreement, commitment understanding or arrangement with respect to the sale, voting, registration or repurchase of the Company’s capital stock or other Rights of the Company or any of its Subsidiaries; provided that nothing contained herein shall prohibit dividends and distributions paid or made on a pro rata basis by direct or indirect Subsidiaries of the foregoing except as otherwise permitted or contemplated by this AgreementCompany in the ordinary course consistent with past practice;
(cvii) except redeem, repurchase, prepay, defease, incur, assume, endorse, guarantee or otherwise become liable for transactions disclosed or modify the terms of any Indebtedness of the Company and its Subsidiaries in excess of $700,000 (it being understood that the terms of any such Indebtedness shall permit the repayment of such Indebtedness upon the Closing Date without premium or penalty). “Indebtedness” of any Person means (A) all indebtedness for borrowed money, (B) any other indebtedness which is evidenced by a note, bond, indenture, debenture or similar Contract, (C) all reimbursement obligations with respect to (1) letters of credit, bank guarantee or bankers’ acceptances or (2) surety, customs, reclamation or performance bonds (in each case not related to judgments or litigation) other than, in the Disclosure Lettercase of clause (2), Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments those entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; business consistent with past practice and (iiD) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, all guarantees by the Offeror in writing, which such Person for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets obligations of any other individual or entity; (v) incur any indebtedness for borrowed money or any Person constituting Indebtedness of such other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advancesPerson;
Appears in 1 contract
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably(unless Parent shall otherwise approve in writing (such approval not to be unreasonably withheld or delayed), and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that except as required by applicable Laws, the business of it and its business Subsidiaries shall be conducted only in the ordinary and usual course and, to the extent consistent therewith, it and ordinary course of business consistent with past practices, and it its Subsidiaries shall use all commercially their respective reasonable best efforts to preserve their business organizations intact and maintain existing relations and preserve its businessgoodwill with Governmental Entities, assets customers, suppliers, distributors, creditors, lessors, employees and advantageous business relationships. Caza shall consult with associates and keep available the Offeror in respect services of its ongoing business and affairs its Subsidiaries’ present employees and keep agents. Without limiting the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any generality of the followingforegoing and in furtherance thereof, from the date of this Agreement until the Effective Time, except (A) as otherwise expressly required or expressly contemplated by this Agreement, (B) as reasonably responsive to a requirement of applicable Law or any Governmental Entity, (C) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed) or (D) except with respect to clause (xvii), as to which this clause (D) will not apply, as set forth in Section 6.1(a) of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) amend adopt or propose any change in its constating documents; certificate of incorporation or bylaws or other applicable governing instruments;
(ii) issue merge or consolidate the Company or any of its Subsidiaries with any other Person, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements with similar effect on the Company’s or any of its Subsidiaries’ assets, operations or businesses;
(iii) acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $4 million, other than acquisitions pursuant to Contracts in effect as of the date of this Agreement;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than on exercise the issuance of shares by a wholly owned Subsidiary of the Company to the Company or surrender of currently outstanding Caza Optionsanother wholly owned Subsidiary and other than shares issuable in accordance with existing rights under the Stock Plans), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible or exchangeable into or exchangeable or exercisable forfor any shares of such capital stock, or otherwise evidencing a right any options, warrants or other rights of any kind to acquire, securities acquire any shares of Caza; such capital stock or such convertible or exchangeable securities;
(iiiv) redeem, purchase create or otherwise acquire incur any Encumbrance on any material assets of the Company or any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; Subsidiaries;
(vi) make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company);
(vii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to the foregoing except as otherwise permitted Company or contemplated by this Agreementto any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(cviii) except for transactions disclosed in the Disclosure Letterreclassify, Caza will notsplit, and will not permit any of its subsidiaries tocombine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, do any of the following other than as contemplated by this Agreement its capital stock or pursuant to commitments entered securities convertible or exchangeable into prior to the date or exercisable for any shares of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: its capital stock;
(i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (vix) incur any indebtedness for borrowed money or any other material liability or obligation guarantee such indebtedness of another Person, or issue or sell any debt securities or assumewarrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, guaranteeexcept for (A) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practices (x) not to exceed $35 million in the aggregate or (y) in replacement of existing indebtedness for borrowed money, endorse (B) guarantees incurred in compliance with this Section 6.1 by the Company of indebtedness of wholly owned Subsidiaries of the Company or (C) interest rate swaps in respect of newly incurred indebtedness on customary commercial terms consistent with past practice;
(x) make or commit to make any capital expenditure in excess of (A) $15 million in the aggregate during any calendar quarter or (B) $38 million in any calendar year;
(xi) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement;
(xii) make any material changes with respect to accounting policies or procedures, except as required by changes in GAAP or interpretations thereof;
(xiii) settle any proceedings before a Governmental Entity or any claim, dispute, litigation or arbitration for an amount in excess of $2 million individually (or $10 million in the aggregate);
(xiv) amend or modify in any material respect or terminate any Material Contract, or cancel or modify in any material respect or waive any debts or claims held by it or waive any rights having in each case a value in excess of $2 million individually (or $10 million in the aggregate);
(xv) make any material Tax election, settle any Tax claim or change any method of Tax accounting in excess of $3 million individually or $10 million in the aggregate;
(xvi) transfer, sell, suffer an Encumbrance, or lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise as an accommodation become responsible for, the obligation dispose of any assets, product lines or businesses of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, except in connection with services provided or products sold in the ordinary course of business and sales of obsolete assets not constituting a product line or business and except for sales, leases, licenses or other individual dispositions of assets not constituting a product line or entity, or make any loans or advances;business with a fair market value not in excess of
Appears in 1 contract
Samples: Merger Agreement (Hydril Co)
Interim Operations. During (a) The Company covenants and agrees as to itself and its Subsidiaries that, from and after the period from the date of execution of this Agreement and ending on prior to the earlier of the First Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing, except with the prior written consent of the Offerorwhich approval shall not be unreasonably withheld, acting reasonablyconditioned or delayed, and except as otherwise (1) required by law applicable Law, (2) expressly required by the Transaction Documents (including in connection with the Separation and the Distribution or expressly permitted or specifically as contemplated by this Agreement:
the Final Step Plan) or (a3) Caza covenants otherwise expressly disclosed in Section 5.01(a) of the Company Disclosure Letter), the Company shall, and agrees that shall cause each of its business shall be conducted only Subsidiaries to, use its reasonable best efforts to conduct the Retained Business in the usual and ordinary course of business consistent with past practicespractice, and it the Company shall, and shall cause each of its Subsidiaries to, solely to the extent related to the Retained Business, subject to compliance with the specific matters set forth below, use all commercially reasonable efforts to preserve the Retained Business’ organization intact and maintain the Retained Business’ existing relations and preserve its businessgoodwill with Governmental Entities, assets customers, suppliers, distributors, licensors, creditors, lessors, employees and advantageous business relationships. Caza shall consult associates and others having material business dealings with the Offeror in respect of its ongoing business Retained Business (including material content providers, studios, authors, producers, directors, actors, performers, guilds, announcers and affairs advertisers) and keep available the Offeror apprised services of all material developments relating thereto;the Company and its Subsidiaries’ present employees and agents.
(b) Caza Without limiting the generality of, and in furtherance of, the foregoing, the Company covenants and agrees as to itself and its Subsidiaries that, from and after the date of this Agreement and prior to the First Effective Time (unless Parent shall nototherwise approve in writing, directly which approval shall not be unreasonably withheld, conditioned or indirectlydelayed, do and which determination shall take into account the Company Overview Presentation, and except as (1) required by applicable Law, (2) expressly required by the Transaction Documents (including in connection with the Separation and the Distribution) or (3) otherwise expressly disclosed in Section 5.01(b) of the Company Disclosure Letter), the Company shall not and shall not permit to occur any of the followingits Subsidiaries to:
(i) amend its constating documents; (ii) issue except with respect to SpinCo and the SpinCo Subsidiaries (other than on exercise in the case of clause (A)),
(A) amend its certificate of incorporation or surrender bylaws (or comparable governing documents) (other than amendments to the governing documents of currently outstanding Caza Optionsany Subsidiary of the Company that would not prevent, delay or impair the Initial Merger or the other Transactions), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (ivB) split, combine combine, subdivide or reclassify its outstanding shares of capital stock (except for any such transaction by a wholly owned subsidiary of its securities; the Company which remains a wholly owned Subsidiary after consummation of such transaction), (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (viC) declare, set aside or pay any dividend or other distribution payable in cash, stock or payment property (whether in cash shares or propertyany combination thereof) in respect of any shares of its outstanding securities without the consent capital stock (except for (1) any dividends or distributions paid by a direct or indirect wholly owned Subsidiary of the Offeror, which consent may be withheld in Company to another direct or indirect wholly owned Subsidiary of the Offeror’s sole and absolute discretion; Company or to the Company or (vii2) normal semiannual cash dividends on the Common Stock as described in Section 5.01(b)(i) of the Company Disclosure Letter), (D) enter into or modify any contract, agreement, commitment or arrangement agreement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any voting of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereofstock, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;
Appears in 1 contract
Samples: Merger Agreement
Interim Operations. During the period (a) The Sellers and RMST agree that, from the date of execution of this Agreement and ending on hereof until the earlier of the Effective Time Closing and the termination of date this AgreementAgreement is validly terminated (the “Interim Period”), except with the prior written consent (i) as set forth in Section 5.1(a) of the OfferorSeller Disclosure Letter, acting reasonably(ii) as may be required by the Bankruptcy Court, (iii) as may be required by applicable Law (including with respect to the Bankruptcy Cases) or Governmental Entity, (iv) as may be permitted by this Agreement (including pursuant to the Bidding Procedures Order) or (v) as may be approved by Purchaser in writing, the Sellers and RMST shall, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted only cause their Affiliates to, conduct the Business in the usual and ordinary course of business consistent with past practicespractice (including with respect to ordering and purchasing Inventory, maintaining the Artifacts and Exhibitry and making capital, sales and marketing expenditures). Without limiting the foregoing, during the Interim Period, Sellers and RMST shall, and it shall cause their Affiliates to, use all commercially reasonable efforts to maintain and (i) conduct the Business in compliance with all applicable Laws, (ii) preserve its business, assets and advantageous their current relationships with any Persons having business relationships. Caza shall consult dealings with the Offeror Business (including employees, suppliers, vendors, customers, clients, and contractors), (iii) maintain the assets, properties, business records and facilities relating to the Transferred Assets or the Business in respect their current working order, (iv) perform on a current basis all obligations under the Assumed Contracts and Assumed Real Property Leases and (v) pay all Liabilities of its ongoing DinoKing in the ordinary course of business and affairs and keep the Offeror apprised of all material developments relating thereto;consistent with past practice.
(b) Caza shall In furtherance of the foregoing, during the Interim Period, except (i) as set forth in Section 5.1(b) of the Seller Disclosure Letter, (ii) as may be required by the Bankruptcy Court, (iii) as may be required by applicable Law (including with respect to the Bankruptcy Cases) or Governmental Entity, (iv) as may be permitted by this Agreement (including pursuant to the Bidding Procedures Order) or (v) as may be approved by Purchaser in writing, the Sellers and RMST will not, directly or indirectly, do or permit to occur any of the followingand will cause their Affiliates not to:
(i) amend its constating or otherwise change their certificate of incorporation or bylaws or other applicable organizational documents; ;
(ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grantissue, sell or pledge or agree to issue, grant, sell or pledge dispose of any equity securities of Cazaany Seller or RMST or redeem or repurchase any equity securities or equity-based award of any Seller or RMST, or securities convertible into into, or exchangeable or exercisable for, any such equity securities or otherwise evidencing awards, or any rights of any kind to acquire any such equity securities or such convertible or exchangeable securities, other than by a right wholly-owned Subsidiary of any such Seller to acquire, securities such Seller or another wholly-owned Subsidiary of Caza; such Seller;
(iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure LetterBusiness sell, Caza will notlease, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing transfer or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (whether by merger, amalgamation, consolidation or acquisition of shares stock or assetsassets or otherwise) any corporation, partnership or other business organization or division thereofthereof or any Transferred Assets or RMST Assets, orin each case other than dispositions of Inventory and other assets in the ordinary course of business or pursuant to existing Contracts in an amount not exceeding $50,000 in the aggregate;
(iv) with respect to the Business acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any assets, in each case other than purchases of Inventory and other assets in the ordinary course of business or pursuant to existing Contracts in an amount not exceeding $50,000 in the aggregate;
(v) incur, assume, refinance or guarantee any Indebtedness for borrowed money or issue any debt securities, or assume or guarantee any Indebtedness for borrowed money of any Person, except for borrowings and guarantees in the ordinary course of business under the DIP Agreement and consistent with the terms of the Cash Budget;
(vi) cancel, compromise, waive or release any right with respect to any Transferred Asset;
(vii) make any loans, advances or capital contributions to, or investments in, any other Person (other than to any wholly-owned Subsidiary of any such Seller);
(viii) make or authorize any capital expenditures in securities made excess of $50,000 in the aggregate for all projects of the Sellers and RMST;
(ix) enter into or amend, modify, supplement, restate or renew in any respect or cancel or terminate or waive any rights under or with respect to any Material Contract, Real Property Lease or Permit;
(x) increase any payments required to be paid under or pursuant to any Assumed Contract or Material Contract, Assumed Real Property Lease or Permit (whether or not in connection with obtaining any Consents) by Purchaser after the Closing, or increase, or take any action not required by the terms thereof that would result in any increase in, any operating expenses of any Assumed Real Property Lease;
(xi) fail to maintain in full force and effect the existing insurance policies maintained by the Sellers or RMST with respect to the Business or the Transferred Assets (“Insurance Policies”) or to replace such Insurance Policies with comparable insurance policies covering the Sellers or RMST with respect to the Business and Transferred Assets, and the Sellers and RMST and their respective properties, assets and businesses;
(xii) other than as required pursuant to the terms of any Benefit Plan in effect on the date hereof or as required by applicable Law: (A) increase the salaries, wages or benefits of Seller Employees, (B) enter into any severance, change-in-control, retention, employment or other agreement with any director or independent contractor of the Sellers or RMST or any Seller Employee, (C) establish, adopt, terminate or amend any Benefit Plan or any plan, program, arrangement, practice or agreement that would be a Benefit Plan if it were in existence on the date hereof; (D) take any action to fund the payment of compensation or benefits under any Benefit Plan; (E) exercise any discretion to accelerate the vesting or payment or any compensation or benefit under any Benefit Plan or (F) extend an offer of employment to any natural Person who, if so employed as of the date hereof, would be a Seller Employee, other than in the ordinary course of business for employees who are not officers;
(xiii) settle or compromise any litigation, claim or proceeding for an amount that exceeds $50,000 in the aggregate or that imposes any injunction, equitable relief, limitation or Lien against the Transferred Assets or RMST Assets or commence any litigation, claim or proceeding;
(xiv) declare, set aside, make or pay any dividend or other distribution of any assets to any Affiliate or other Person holding direct or indirect equity interests in any Seller or RMST;
(xv) grant, assign, license, let lapse, abandon, cancel, or otherwise dispose of any Seller and RMST Intellectual Property, other than Excluded Assets or pursuant to non-exclusive licenses of such Intellectual Property granted in the ordinary course of business;
(xvi) enter into any agreement with any labor union or labor organization, including but not limited to any collective bargaining agreement;
(xvii) make, change or revoke any election related to Taxes, settle or compromise any claim related to Taxes, enter into any agreement related to Taxes, consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, or change any taxable period or any Tax accounting method;
(xviii) make any investmentchange in the reserving or accounting policies, either by purchase of shares practices or securitiesprinciples in effect on the date hereof, contributions of capital (other than any change required by applicable Law or GAAP;
(xix) permit or allow any Transferred Asset or RMST Asset to subsidiaries)become subject to a Lien;
(xx) change in any respect the cash management practices, property transferpolicies or procedures of Sellers or RMST with respect to collection of accounts receivable, orestablishment of reserves for uncollectible accounts receivable, except accrual of accounts receivable, payment of accounts payable, purchases, prepayment of expenses or deferral of revenue, from Sellers’ or RMST’s practices, policies and procedures with respect thereto as of the date hereof, including taking (or omitting to take) any action that would have the effect of delaying or postponing the payment of any accounts payable to post-Closing periods that would otherwise be expected to be paid in pre-Closing periods;
(xxi) make any intercompany transfers of funds or Liabilities including any transfers between any of the Sellers and RMST;
(xxii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services sold in the Business;
(xxiii) deviate from past practice in the ordinary course of business, purchase business with respect to ordering or maintenance of Inventory and the Artifacts & Exhibitry;
(xxiv) file any property or assets motion to pay any pre-Petition Date claims of any other individual Person;
(xxv) prepay any expenses unless expressly set forth in the Cash Budget; or
(xxvi) agree, authorize or entity; commit to do any of the foregoing.
(vc) incur any indebtedness for borrowed money Nothing contained in this Agreement is intended to give Purchaser, directly or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible forindirectly, the obligation right to control or direct the Business or the operations of any other individual the Sellers or entityRMST prior to the Closing, and nothing contained in this Agreement is intended to give the Sellers, directly or make any loans indirectly, the right to control or advances;direct Purchaser’s or its Subsidiaries’ operations. Prior to the Closing, each of Purchaser and the Sellers and RMST shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 1 contract
Samples: Asset Purchase Agreement (Premier Exhibitions, Inc.)
Interim Operations. During (a) Except as required by applicable Law or as expressly provided by this Agreement, the period Company covenants and agrees as to itself and its Subsidiaries that, after the date of this Agreement and prior to the Effective Time, the business of it and its Subsidiaries shall be conducted in all material respects the ordinary and usual course and it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve the material components of their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, material suppliers, licensors, licensees, distributors, creditors and lessors, key employees and independent contractors, and material service providers, agents and business associates and keep available the services of its and its Subsidiaries’ present officers and key employees; provided however, that the Company and its Subsidiaries shall be under no obligation to and shall not, without JAB’s prior written consent, put in place any new retention programs or include additional personnel in any existing retention programs. Without limiting the generality of the immediately preceding sentence, from the date of execution of this Agreement and ending on the earlier of until the Effective Time and the termination of Time, except (A) as otherwise expressly required by this Agreement, except (B) with the prior written consent of JAB or (C) as set forth in Section 6.1 of the OfferorCompany Disclosure Schedule, acting reasonably, the Company will not and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreementwill not permit its Subsidiaries to:
(ai) Caza covenants adopt or propose any change or amendment (whether by merger, consolidation or otherwise) to its articles of incorporation or bylaws or other applicable governing instruments of the Company and agrees its Subsidiaries;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions solely among wholly owned Subsidiaries of the Company not in violation of any instrument binding on the Company or any of its Subsidiaries and that its business shall would not reasonably be conducted only expected to result in a material increase in the usual net Tax liability of the Company and its Subsidiaries, taken as a whole;
(iii) acquire, directly or indirectly, whether by purchase, merger, consolidation or acquisition of stock or assets or otherwise, any assets, securities, properties, interests, or businesses or make any investment (whether by purchase of stock or securities, contributions to capital, loans to, or property transfers), in each case, other than (A) acquisitions of raw materials, supplies, equipment, inventory, third party software and capital in the ordinary course of business (it being understood and agreed that the acquisition of all or substantially all of the assets of any Person is not in the ordinary course of business consistent with past practicespractice), and it shall use all commercially reasonable efforts to maintain and preserve its businessor (B) acquisitions with a value or purchase price (including the value of assumed liabilities) not in excess of $250,000 in any transaction or related series of transactions or $750,000 in the aggregate, assets and advantageous business relationships. Caza shall consult with or as required by the Offeror terms of Contracts as in respect effect as of its ongoing business and affairs and keep the Offeror apprised date of all material developments relating theretothis Agreement that are listed in Section 6.1(a)(iii) of the Company Disclosure Schedule;
(biv) Caza shall notissue, directly sell, pledge, dispose of, grant, transfer, encumber, or indirectlyauthorize the issuance, do sale, pledge, disposition, grant, transfer, lease, license, guarantee or permit to occur encumbrance of, any (A) shares of capital stock of the Company or any of the following:
(i) amend its constating documents; (ii) issue Subsidiaries (other than on exercise or surrender of currently outstanding Caza Options)(1) the issuance, sale, pledge, disposition, grant, sell transfer, lease, license, guaranty or pledge encumbrance of shares by a wholly owned Subsidiary of the Company to the Company or agree another wholly owned Subsidiary or (2) the issuance or transfer of Shares pursuant to issueawards outstanding as of the date of this Agreement under, grantand as required by the terms of, sell or pledge any securities the Stock Plans as in effect as of Cazathe date of this Agreement), or (B) securities convertible into or exercisable, exchangeable or exercisable forredeemable for any shares of such capital stock, any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible, exercisable, exchangeable or redeemable securities, or otherwise evidencing a right to acquire, securities of Caza; (iiiC) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; Voting Debt;
(v) adopt a plan make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of liquidation the Company) in excess of $250,000 in any transaction or resolutions providing for series of related transactions or $500,000 in the liquidation, dissolution, merger, consolidation or reorganization of Caza; aggregate;
(vi) amend, supplement, replace, refinance, terminate or otherwise modify that certain Amended and Restated Credit Agreement by and between the Company and Xxxxx Fargo Bank, National Association, dated as of December 21, 2010 (as such agreement may be further amended, amended and restated, supplemented, extended, refinanced, renewed, replaced or otherwise modified from time to time);
(vii) declare, authorize, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (except for dividends paid by any Subsidiary of the foregoing except as otherwise permitted Company to the Company or contemplated to a wholly owned Subsidiary of the Company) or enter into any Contract with respect to the voting of its capital stock other than proxies or voting agreements solicited by this Agreementthe Company to obtain the Requisite Company Vote;
(cviii) except for transactions disclosed in the Disclosure Letteradjust, Caza will notreclassify, and will not permit any of its subsidiaries tosplit, combine or subdivide, or redeem, purchase or otherwise acquire, directly or indirectly, do any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(ix) incur, alter, amend or modify any indebtedness or guarantee indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the following other than Company or any of its Subsidiaries, except for the incurrence of indebtedness for borrowed money incurred in the ordinary course of business consistent with past practice not to exceed $500,000 in the aggregate;
(x) make or authorize any capital expenditures in excess of the amount reflected in the Company’s capital expenditure budget attached to Section 6.1(a)(x) of the Company Disclosure Schedule;
(xi) make any material changes with respect to accounting policies or procedures, except as contemplated required by changes in applicable GAAP;
(xii) subject to Section 6.13, release, assign, compromise, discharge, waive, settle or satisfy any Action (including any Action relating to this Agreement or pursuant the Merger) or other rights, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) for an amount not covered by insurance in excess of $250,000 individually or $500,000 in the aggregate or providing for any relief other than monetary relief (except for confidentiality, non-disparagement, releases, agreements not to commitments xxx and other similar provisions in a settlement agreement);
(xiii) amend or modify, in any material respect, or terminate any Material Contract, material lease for Leased Real Property or material Permit or enter into any Contract that would have been a Material Contract had it been entered into prior to the date execution of this Agreement and disclosed Agreement, in each case other than in the ordinary course of business;
(xiv) make any material Tax election, amend any Tax Return with respect to the other party in writing a material amount of Taxes, settle or otherwise disclosed finally resolve any controversy with respect to the other partya material amount of Taxes or change any method of Tax accounting;
(xv) (A) with regard to Intellectual Property, without the prior consent of the other partytransfer, such consent not to be unreasonably withheld: (i) sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of or encumber any assetsmaterial Intellectual Property, except other than non-exclusive licenses granted in the ordinary course of business; and (iiB) expend with regard to other assets, transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon, create or commit incur any Lien (other than Permitted Encumbrances) on or allow to expend lapse or expire or otherwise dispose of any amounts in material assets, licenses, operations, rights, product lines, businesses or interests therein of the Company or its Subsidiaries, except, with respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth foregoing clause (B), (x) in this Section 7.1(c); connection with sales of Company Products or dispositions of inventory in the ordinary course of business (iiiy) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership sales or other business organization whatsoever; dispositions of obsolete assets or (ivz) acquire (by mergersales, amalgamationleases, consolidation or acquisition of shares or assets) any corporation, partnership licenses or other dispositions of assets with a fair market value not in excess of $250,000 in any transaction or series of related transactions or $750,000 in the aggregate (inclusive of any sales or dispositions made pursuant to clauses (x) or (y) of this paragraph);
(xvi) terminate any executive officers or hire any new employees unless such hiring is in the ordinary course of business organization consistent with past practice and is with respect to employees having an annual base salary and incentive opportunity not to exceed $300,000 in the aggregate for such employee;
(xvii) adopt, enter into, amend, terminate or division thereofextend any Collective Bargaining Agreement;
(xviii) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement, or as otherwise required by applicable Law, (A) grant or provide any severance or termination payments or benefits to any director, officer or, except for investments in securities made other than in the ordinary course of business, employees (who are not officers) of the Company or any of its Subsidiaries, (B) increase the compensation, bonus or pension, welfare, severance, change-in-control or other benefits of, pay any bonus to, or make any investmentnew equity awards to any director, either by purchase of shares or securitiesofficer or, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of businessbusiness consistent with past practice, purchase non-officer employee of the Company or any property of its Subsidiaries other than, in the case of non-officer employees, base salary increases or assets spot or other bonuses awarded in the ordinary course of business (which spot or other bonuses shall not exceed $50,000 in the aggregate), (C) establish, adopt, amend or terminate any Company Benefit Plan (except as required by Law) or amend the terms of any outstanding equity-based awards, (D) take any action to accelerate the vesting or payment, or fund or in any other individual way secure the payment, of compensation or entity; benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (vE) incur materially change any indebtedness for borrowed money actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (F) forgive any loans to directors, officers or key employees of the Company or any other material liability or obligation or issue of its Subsidiaries;
(xix) unless required by applicable Law, reclassify any debt securities or assume, guarantee, endorse or otherwise independent contractor as an accommodation become responsible foremployee of the Company or any of its Subsidiaries;
(xx) fail to use commercially reasonable efforts to renew or maintain the Insurance Policies or comparable replacement policies, other than in the ordinary course of business consistent with past practice;
(xxi) enter into any new line of business not related to coffee or tea;
(xxii) adopt, enter into or effect any plan of complete or partial liquidation, dissolution, reorganization or restructuring;
(xxiii) take any action that would, or would be reasonably likely to, individually or in the aggregate, prevent, materially delay or materially impede the consummation of the Merger or the other transactions contemplated by this Agreement; or (xxiv) agree, authorize, propose, commit or announce an intention to do any of the foregoing.
(b) Nothing contained herein shall give to JAB or Merger Sub, directly or indirectly, rights to control or direct the Company’s operations prior to the Effective Time in violation of applicable Law. Prior to the Effective Time, the obligation Company shall exercise, consistent with the terms and conditions hereof, complete control and supervision of any other individual or entity, or make any loans or advances;its operations and shall not be required to obtain consent of JAB if it reasonably believes that doing so would violate applicable Law.
Appears in 1 contract
Interim Operations. During (a) Except as otherwise (i) required by this Agreement, (ii) required by applicable Law or the period DOJ Agreement, (iii) approved in writing by Parent (such approval not to be unreasonably withheld, delayed or conditioned) or (iv) set forth on Section 6.1(a) of the Company Disclosure Schedule, from the date of execution of this Agreement and ending on the earlier of until the Effective Time and Time, the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonablyCompany will, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants will cause its Subsidiaries to, use its and agrees that its business shall be conducted only their reasonable best efforts to conduct their businesses in the usual and ordinary course of business consistent with past practicespractice and, to the extent consistent therewith, the Company shall, and it shall cause its Subsidiaries to, use all its and their commercially reasonable efforts to preserve their business organizations intact and to maintain existing business relationships (including with customers and preserve suppliers); provided, that no action by the Company or its business, assets and advantageous business relationships. Caza Subsidiaries with respect to matters specifically addressed by any provision of Section 6.1(b) shall consult with the Offeror in respect be deemed a breach of its ongoing business and affairs and keep the Offeror apprised this sentence unless such action would constitute a breach of all material developments relating thereto;such provision of Section 6.1(b).
(b) Caza shall Except as otherwise (w) required by this Agreement, (x) required by applicable Law or the DOJ Agreement, (y) approved in writing by Parent (such approval not to be unreasonably withheld, delayed or conditioned) or (z) set forth on Section 6.1(b) of the Company Disclosure Schedule, from the date of this Agreement until the Effective Time, the Company will not, directly or indirectly, do or permit to occur any of the followingand will cause its Subsidiaries not to:
(i) amend its constating documents; (iix) issue adopt or submit to stockholder approval any change in the certificate of incorporation or bylaws of the Company or (other than on exercise or surrender y) adopt any change in the comparable organizational document of currently outstanding Caza Optionsany Subsidiary of the Company that, in the case of this clause (y), grant, sell would be adverse to Parent or pledge Merger Sub or agree to issue, grant, sell adversely affect or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to delay the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent consummation of the Offeror, which consent may be withheld in Merger or the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or other transactions contemplated by this Agreement;
(cii) except for transactions disclosed in merge or consolidate the Disclosure Letter, Caza will not, and will not permit Company or any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue Subsidiaries with any other Person, corporationexcept for any such transaction between or among any of its wholly owned Subsidiaries that would not impose, partnership individually or other in the aggregate, any changes or restrictions on its assets, operations or business organization whatsoever; or on the assets, operations and business of the Company and its Subsidiaries that would be adverse to Parent or any of its Subsidiaries, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreement or arrangement imposing, individually or in the aggregate, any changes or restrictions on the assets, operations or business of the Company or any of its Subsidiaries except for restructuring, reorganizations or complete or partial liquidations that do not incur, increase or accelerate any material liability to any Person;
(iviii) acquire (including by merger, amalgamation, consolidation or acquisition of shares equity interests or assetsassets or any other business combination) (A) any corporation, partnership or other business organization or division thereof(B) any assets outside of the ordinary course of business consistent with past practice from any other Person in any transaction or series of related transactions (in the case of clause (B), orfor consideration in excess of $10,000,000 in the aggregate);
(iv) issue, except sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or Lien against, or otherwise enter into any Contract or understanding with respect to the voting of, any shares of capital stock of the Company or any of its Subsidiaries, or securities convertible or exchangeable into or exercisable for investments any shares of such capital stock, or any options, warrants, restricted shares, restricted share units, performance share units, stock appreciation rights, phantom stock or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, in securities made each case, other than (A) any such transaction among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, (B) any issuance, sale, grant or transfer of Shares pursuant to (1) exercise or settlement of Company Equity Awards outstanding as of the date of this Agreement or granted after the date of this Agreement not in violation of this Agreement, in each case in accordance with their terms or (2) the conversion of Subordinated Convertible Notes in accordance with their terms or (C) with respect to encumbrances, pursuant to the Company Credit Agreement as in effect on the date hereof.
(v) make any loans, advances or capital contributions to any Person (other than (A) to the Company or any of its wholly-owned Subsidiaries, (B) operating leases and extensions of credit terms to customers in each case in the ordinary course of businessbusiness consistent with past practice and (C) loans or advances made by the Company or any of its Subsidiaries to employees in the ordinary course of business consistent with the terms set forth in Section 6.1(b)(v) of the Company Disclosure Schedule);
(vi) declare, set aside, make or pay any investmentdividend or other distribution, either payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for (A) dividends or other distributions paid by any wholly-owned Subsidiary of the Company to the Company or to any other wholly-owned Subsidiary of the Company and (B) quarterly dividends to stockholders of the Company by the Company in an amount not to exceed $0.18 per Share with record and payment dates for such dividends consistent with practice or, subject to the preceding clause (B) (which, for the avoidance of doubt, shall be permitted), take any other action or permit any event or circumstances to occur that would cause or require an adjustment of the “Conversion Rate” (as defined in the Subordinated Convertible Notes Indenture);
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (except for (A) any such transaction by a wholly-owned Subsidiary of the Company, (B) acquisitions of Shares in satisfaction of withholding obligations in respect of Company Equity Awards, or securitiespayment of the exercise price in respect of Company Options, contributions in each case, outstanding as of the date of this Agreement pursuant to its terms or granted thereafter not in violation of this Agreement and (C) redemptions or acquisitions of the Subordinated Convertible Notes to the extent required by, and in accordance with, the terms thereof);
(viii) create, incur, assume, guarantee, endorse, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees of the same or any other Indebtedness incurred outside the ordinary course of business consistent with past practice, issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries or grant any Liens on any of its assets, except for (A) borrowings in the ordinary course of business consistent with past practice under the Company’s credit facilities as in effect on the date hereof or under facilities that replace or refinance such existing credit facilities and that (I) can be repaid on the Closing Date in connection with the Closing without premium or penalty and (II) do not increase the aggregate amount of the commitments thereunder relative to the facilities so replaced or refinanced and (B) guarantees by the Company of the obligations of its Subsidiaries incurred in the ordinary course of business consistent with past practice, and (C) indebtedness for borrowed money that can be prepaid without premium or penalty on the Closing Date in connection with the Closing in an amount not to exceed $25,000,000 in the aggregate;
(ix) other than in accordance with the Company’s capital expenditure budget made available to Parent prior to the date of this Agreement and set forth in the Company Disclosure Schedule, incur or commit to any capital expenditure or expenditures, except capital expenditures of less than $5,000,000 individually or $10,000,000 in the aggregate;
(x) other than in the ordinary course of business (it being understood that this ordinary course exception shall not apply to any actual or potential Material Contracts pursuant to clauses B, D, E, G, I, K or L of the definition thereof) or in connection with any matter to the extent such matter is expressly permitted by any other clause of this Section 6.1(b), (A) enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement or (B) amend or modify in any material respect or assign or terminate any Material Contract (other than expirations of any such Contract in accordance with its terms) or otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Subsidiaries thereunder, or amend or modify in any respect or assign, terminate or fail to subsidiariescomply with the DOJ Agreement;
(xi) make any material changes with respect to financial accounting policies or procedures, except as required by Law, proposed Law or by U.S. GAAP or statutory or regulatory accounting rules or interpretations with respect thereto or by any Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization);
(xii) settle any action, suit, claim, hearing, arbitration, investigation or other proceedings (other than any audit or other proceeding in respect of Taxes), property transferother than settlements that result solely in monetary obligations of the Company or its Subsidiaries (without the admission of wrongdoing or a nolo contendere or similar plea, orthe imposition of injunctive or other equitable relief, or restrictions on the future activity or conduct, by, of or on Parent, the Company or any of their respective Subsidiaries) involving payment by the Company or any of its Subsidiaries of (A) amounts not in excess of the sum of (x) amounts specifically reserved in accordance with U.S. GAAP with respect to such proceeding on the Company’s consolidated financial statements for the quarterly period ending September 30, 2017 plus (y) $500,000, or (B) an amount not greater than $500,000 individually or $3,000,000 in the aggregate;
(xiii) (A) make, change or revoke any Tax election, (B) except in the ordinary course of businessbusiness and consistent with past practice, purchase file any property amended Tax Return, (C) adopt or assets change any accounting method for Taxes, (D) settle or compromise any Tax liability or any audit, examination or other proceeding in respect of Taxes, (E) surrender any claim for a refund of Taxes, or (F) enter into any closing agreement relating to Taxes, except, in each case, to the extent such action would not, individually or in the aggregate, reasonably be expected to result in a material increase in the Tax liability of the Company and its Subsidiaries taken as a whole (it being agreed and understood that this exception shall not be construed to permit the Company or any of its Subsidiaries, without the approval of Parent (such approval not to be unreasonably withheld, delayed or conditioned), to settle or compromise any Tax liability or any audit, examination or other proceeding in respect of Taxes in excess of $500,000 individually or $3,000,000 in the aggregate);
(xiv) transfer, sell, lease, license, permit to lapse, abandon, divest, cancel or otherwise dispose of, or permit or suffer to exist the creation of any Lien upon other individual than Permitted Liens, any assets or entity; capital stock of the Company or any of its Subsidiaries, except (vA) incur inventory or Registered Intellectual Property in the ordinary course of business consistent with past practice or (B) having a value not in excess of $5,000,000 individually or $15,000,000 in the aggregate;
(xv) except as required by any indebtedness for borrowed money Benefit Plan as in effect on the date hereof, (A) terminate, adopt, establish, enter into, amend or renew any Benefit Plan, other than amendments that do not increase benefits or result in increased costs, (B) increase in any manner the compensation, benefits, severance or termination pay of any of the current or former directors or employees of the Company or its Subsidiaries, (C) pay any bonus or incentive compensation under any Benefit Plan, other than to the extent permitted by Section 6.9(d), (D) accelerate the vesting of or lapsing of restrictions, or amend the vesting requirements, with respect to any equity-based compensation or other long-term incentive compensation under any Benefit Plan, (E) grant any new severance, change in control, retention benefit or any other material liability award (other than severance pursuant to separation agreements entered into with terminated employees who are not executive officers in the ordinary course of business consistent with past practice providing for severance not in excess of that required by applicable Law or obligation a Benefit Plan in effect on the date hereof), (F) take any action to accelerate the payment of, or issue to fund or secure the payment, of any debt securities amounts under any Benefit Plan, (G) hire any (x) executive officer or assume(y) employee or consultant who is a natural person with a base salary or annualized base wage amount in excess of $150,000, guarantee(H) promote any executive officer of the Company or promote any employee to an executive officer position or a position for which the base salary or annualized base wage amount exceeds $150,000, endorse (I) become a party to, establish, adopt, renew, materially amend, commence participation in or otherwise as an accommodation become responsible forterminate any collective bargaining agreement or other agreement with a labor union, works council, public labor authority, or similar organization or (J) terminate without cause the employment of any executive officer of the Company;
(xvi) factor any receivables or effect any reverse factoring except, solely in the case of reverse factoring, in the ordinary course of business consistent with past practice; or
(xvii) agree, authorize or commit to do any of the foregoing.
(c) Subject to the terms of this Agreement, including Section 6.5 and Section 6.13, after the date of this Agreement and prior to the Effective Time, the obligation Company, Parent and Merger Sub shall not take or permit any of their respective Subsidiaries to take or agree to take any other individual action that would reasonably be expected to prevent, materially impair or entitymaterially delay the consummation of the Merger.
(d) Nothing contained in this Agreement is intended to give Parent or Merger Sub, directly or make any loans indirectly, the right to control or advances;direct the operations of the Company and its Subsidiaries prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 1 contract
Interim Operations. During The Company covenants and agrees that, after the period date hereof and until the Effective Time, its business and the business of its Subsidiaries shall be conducted in the ordinary and usual course, consistent with past practice in all material respects. To the extent consistent with the foregoing sentence, the Company and its Subsidiaries shall use their respective commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of the present employees and agents of the Company and its Subsidiaries. Nothing in the foregoing sentences shall prohibit or restrict the Company and its Subsidiaries from the date of execution of this Agreement and ending on the earlier of to the Effective Time from taking any of the following actions: (i) actions approved by Purchaser in writing, which approval shall not be unreasonably withheld, delayed or conditioned; (ii) any action expressly required or permitted by this Agreement; and (iii) any action required by Law. Without limiting the termination generality of the foregoing and in furtherance thereof, from the date hereof until the Effective Time, except (A) as otherwise expressly required or permitted by this Agreement, except with the prior written consent (B) as Purchaser may approve in writing (such approval not to be unreasonably withheld, delayed or conditioned), (C) as set forth in Section 6.1 of the Offeror, acting reasonably, and except Company Disclosure Letter or (D) as otherwise required by law or expressly permitted or specifically contemplated by this Agreementany applicable Laws (including any requirement of the SEC), the Company will not and will not permit its Subsidiaries to:
(a) Caza covenants and agrees adopt or propose any change in its certificate of incorporation or by-laws or other applicable governing instruments;
(b) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (ii) any assets that its business shall would be conducted only material, individually or in the usual aggregate, to the Company and its Subsidiaries, taken as a whole, except purchases of supplies, equipment, services and inventory in the ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretopractice;
(bc) Caza shall notrestructure, directly recapitalize, reorganize or indirectly, do completely or permit partially liquidate the Company or adopt a plan of complete or partial liquidation with respect to occur the Company or adopt resolutions providing for or authorizing any of the following:foregoing;
(d) other than (i) amend its constating documents; Shares issuable pursuant to Company Options outstanding and disclosed as outstanding in Section 5.1(b) of the Company Disclosure Letter and (ii) issue Shares issuable pursuant to the exercise of Warrants, issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any its Subsidiaries (other than on exercise the issuance of shares by a wholly owned Subsidiary of the Company to the Company or surrender of currently outstanding Caza Optionsanother wholly owned Subsidiary), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible or exchangeable into or exchangeable or exercisable forfor any shares of such capital stock, or otherwise evidencing a right any options, warrants or other rights of any kind to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any shares of its outstanding such capital stock or such convertible or exchangeable securities;
(e) make any loans, advances (except as permitted pursuant for advances to employees or consultants in respect of travel and business expenses) or capital contributions to or investments in any Person (other than the terms thereof Company or as permitted in accordance with any direct or contemplated by this Agreement; indirect wholly owned Subsidiary of the Company);
(iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vif) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to the foregoing except as otherwise permitted Company or contemplated by this Agreementto any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(cg) except for other than transactions disclosed in the Disclosure Letterinvolving direct or indirect wholly owned Subsidiaries, Caza will notreclassify, and will not permit any of its subsidiaries tosplit, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, do any of the following its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock other than as contemplated by this Agreement or pursuant to commitments entered into prior the Stock Plans and the Warrant Agreements;
(h) redeem, repurchase, prepay, cancel, incur or otherwise acquire, or modify, in any material respect in a manner adverse to the date Company, its Subsidiaries, Purchaser or Merger Sub, any indebtedness for borrowed money or guarantee such indebtedness of this Agreement and disclosed another Person, or issue or sell any debt securities or warrants or other rights to the other party in writing or otherwise disclosed to the other party, without the prior consent acquire any debt security of the other partyCompany or any of its Subsidiaries, such consent not except with respect to be unreasonably withheld: (i) sellany such redemption, pledgerepurchase, dispose prepayment, cancellation, incurrence or acquisition of indebtedness incurred or encumber repaid under the Amended and Restated Credit Agreement with Bank of America, N.A. and the other banks party thereto, dated as of September 29, 2005 or (ii) any assetssuch redemption, repurchase, prepayment, cancellation, incurrence or acquisition not to exceed $2,500,000 in the aggregate or (iii) guarantees incurred in compliance with this Section 6.1 by the Company or any of its direct or indirect wholly owned Subsidiaries of indebtedness of any direct or indirect wholly owned Subsidiary of the Company;
(i) except as set forth in each of the quarterly capital budgets previously made available to Purchaser and consistent therewith, make or authorize any capital expenditures in excess of $500,000 in the aggregate;
(j) other than in the ordinary course of business; business consistent with past practice, (iiA) expend enter into, renew, terminate, fail to renew or commit to expend amend in any amounts in material respect any Contract that is or would be a Material Contract, (B) enter into, amend, modify or waive any rights under any contract or agreement or transaction with an executive officer or director of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); Company (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made other than on arm’s-length terms in the ordinary course of business, any Person in which such executive officer or director, or any immediate family member of such executive officer or director, has over a 5% interest) involving amounts in excess of $75,000, or (C) enter into any line of business other than lines of business currently conducted by the Company and its Subsidiaries;
(k) make any investmentchanges with respect to accounting policies or procedures, either except as required by purchase Law or changes in applicable generally accepted accounting principles (of shares which, to the knowledge of the Company, there are none) or securitieswrite up, contributions write down or write off the book value of capital (any assets of the Company or its Subsidiaries, other than in the ordinary course of business and consistent with past practice;
(l) pay, discharge, waive, compromise settle or otherwise satisfy any Action, whether now pending or hereafter brought, (A) at a cost materially in excess of the amount accrued or reserved in the Company Reports or (B) pursuant to subsidiaries)terms that impose material adverse restrictions on the business of the Company and its Subsidiaries as currently conducted or (C) on a basis that reveals a finding or an admission of a material violation of Law by the Company or its Subsidiaries;
(m) other than in the ordinary course of business consistent with past practice, property (A) make, change or revoke any material Tax election, (B) enter into any settlement or compromise of any material Tax liability, (C) file any amended Tax Return with respect to any material Tax, (D) change any annual Tax accounting period, (E) enter into any closing agreement relating to any material Tax, (F) fail to claim a material Tax refund for which it is entitled, or (G) make material changes to their Tax accounting methods or principles;
(n) transfer, orsell, lease, license, sublicense, mortgage, pledge, surrender, encumber, divest, cancel, abandon, restrict or allow to lapse or expire or otherwise dispose of any material assets, product lines or businesses of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, except in the ordinary course of business, purchase and except for obsolete assets and except for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $1,000,000 in the aggregate, other than pursuant to Contracts in effect prior to the date hereof;
(o) except as required pursuant to existing written, binding agreements in effect prior to the date hereof or any property Benefit Plan which is set forth in Section 6.1(o) of the Company Disclosure Letter, (i) (A) hire, promote or assets terminate any director, employee or consultant earning more than $125,000 in aggregate annual compensation (other than, in the case of this clause (A), (x) employee terminations for cause, (y) in connection with new hires to replace departed key employees or consultants in the ordinary course of business consistent with past practice and on substantially similar terms and conditions and (z) in connection with promotions in the ordinary course of business consistent with past practice); or (B) implement or effect any reduction in force, lay off or similar program or effort concerning the termination of employees (other than, in the case of this clause (B), (x) employee terminations for cause and (y) employee terminations pursuant to and consistent with past practice); (ii) grant or provide any new severance or new termination payments or new material benefits to any former or existing director, officer, employee or consultant of the Company or any of its Subsidiaries, (iii) increase the compensation, fees, bonus or pension, profit sharing, welfare, severance or other benefits of or pay any bonus to any employee or director or make any new equity awards to any director, officer, consultant or employee of the Company or any of its Subsidiaries (other than, in all such cases, employees earning $75,000 or less in aggregate annual compensation), (iv) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any other individual or entity; outstanding equity-based awards, (v) incur take any indebtedness for borrowed money action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (vi) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vii) forgive any loans to directors, officers or, outside the ordinary course of business, employees of the Company or any of its Subsidiaries;
(p) except on substantially similar terms and conditions to the terms and conditions set forth on Section 6.1(p) of the Company Disclosure Letter, establish, adopt, enter into or amend any collective bargaining agreement or other agreement with any labor union or organization;
(q) (A) transfer to one or more third parties, mortgage or encumber, or except in the ordinary course of business, license or sublicense, any material liability Intellectual Property or obligation or issue (B) fail to pay any debt securities or assumefee, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of take any other individual or entity, action or make any loans filing reasonably necessary to maintain its ownership of the material owned Intellectual Property;
(r) fail to maintain in full force and effect, or advances;fail to replace or renew, material insurance policies existing as of the date hereof that are maintained by the Company or any of its Subsidiaries; or
(s) agree, authorize or commit to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Sourcecorp Inc)
Interim Operations. During the period from the date of execution of this Agreement and ending on the earlier (a) Each of the Effective Time Vendors, jointly and severally, covenants and agrees that during the termination Interim Period the Business shall be run in accordance with the following provisions:
(i) during the Interim Period the representatives of this Agreementthe Purchasers shall be entitled to have access to and be present at the Business premises of the Vendors at all times during the Vendors' reasonable business hours;
(ii) during the Interim Period the Vendors shall not, except with without the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other partyPurchasers, such consent not to be unreasonably withheld: withheld or delayed:
(iA) permit any of the Purchased Assets to be subjected to any Encumbrance;
(B) sell, pledge, transfer or otherwise dispose of or encumber any assets, except of the Purchased Assets;
(C) grant any increase in the ordinary course benefits, rate of business; wages, salaries, or bonuses for Employees;
(iiD) expend make any change in any method of accounting practice applicable to the Business;
(E) cancel or reduce any of its insurance coverage relating to Purchased Assets or the Business;
(F) commit to expend more than $10,000 in the aggregate with respect to any amounts in respect capital expenditure of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); Business;
(iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (ivG) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made other than in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in business and within the ordinary course of businesslimits specified herein, purchase any property or assets of any other individual or entity; ;
(vH) incur any indebtedness for borrowed money obligations of any kind in excess of $100,000 in the aggregate in respect of the Business; or
(I) authorize or propose any of the foregoing, or enter into or modify any contract, agreement, commitment or arrangement to do any of the foregoing; and
(iii) the Vendors shall:
(A) use their commercially reasonable efforts to keep available the services of the Employees and to maintain their relations and goodwill with the suppliers, customers, distributors and any others having business relations with the Business; and
(B) immediately upon becoming aware of the existence of:
1. any notice from, proceeding before or order of any governmental entity requiring it to comply with or take action under any Environmental Law,
2. any notice from a lender asserting a violation or breach of any loan covenant or any other material liability provision of any financing agreement, or
3. any state of affairs respecting the Leased Premises, Purchased Assets or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible forBusiness which could reasonably be expected to give rise to future environmental liabilities, the obligation imposition of any other individual or entityfine, or make the shutting down of the Business for any loans or advances;period of time, notify the Purchasers in writing and provide details of any actions taken in response.
Appears in 1 contract
Interim Operations. During Except (1) as required by applicable Law, (2) as Parent may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed), (3) as expressly disclosed in Section 6.1 of the period Company Disclosure Letter, or (4) as expressly required by this Agreement, the Company covenants and agrees as to itself and its Subsidiaries that, from and after the date of execution of this Agreement and ending on prior to the earlier of (x) the Effective Time and the or (y) termination of this AgreementAgreement in accordance with Article VIII, the Company shall use its commercially reasonable efforts to conduct its business and the business of its Subsidiaries in the ordinary course of business, and, to the extent consistent therewith and subject to the restrictions contemplated in this Section 6.1(a), the Company shall, and shall cause each of its Subsidiaries to, use its commercially reasonable efforts to (A) preserve substantially intact its and its Subsidiaries’ business organizations, goodwill, assets, properties and Contracts (B) maintain its existence in good standing under the Laws of its incorporation or formation, (C) keep available the services of its current officers and employees, and (D) preserve its existing relationships with its material customers, suppliers, licensors, licensees, distributors, lessors and other Persons with which the Company and its Subsidiaries have business relations. Without limiting the generality of the foregoing, except with the prior written consent (1) as required by applicable Law, (2) as Parent may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed), (3) as expressly disclosed in Section 6.1 of the OfferorCompany Disclosure Letter corresponding to the applicable clause below, acting reasonably, and except or (4) as otherwise expressly required by law or expressly permitted or specifically contemplated by this Agreement, the Company covenants and agrees as to itself and its Subsidiaries that, from and after the execution of this Agreement and prior to the earlier of (x) the Effective Time or (y) termination of this Agreement in accordance with Article VIII, Company shall not and will not permit any of its Subsidiaries to:
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend amend, supplement or otherwise modify its constating certificate of incorporation or bylaws (or comparable governing documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant amendments to the terms thereof governing documents of any wholly owned Subsidiary of the Company that would not prevent, delay or as permitted in accordance with impair the Merger or the other transactions contemplated by this Agreement; ), (ivii) adjust, split, combine combine, subdivide or reclassify its outstanding shares of capital stock (except for any such transaction by a wholly owned Subsidiary of its securities; the Company which remains a wholly owned Subsidiary after consummation of such transaction), (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (viiii) declare, set aside or pay any dividend or other distribution payable in cash, stock, property or payment otherwise (whether in cash shares or propertyany combination thereof) in respect of its outstanding securities without the consent of the Offerorof, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement Contract with respect to the voting of, any shares of its capital stock (except for any dividends or distributions paid by a direct or indirect wholly owned Subsidiary of the foregoing except as Company to another direct or indirect wholly owned Subsidiary of the Company or to the Company), or (iv) purchase, repurchase, redeem or otherwise permitted acquire any shares of its capital stock or any securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than pursuant to (1) the exercise of Company Options or the forfeiture of, or withholding of Taxes with respect to, Company Options, Restricted Stock Units or Performance Restricted Stock Units or (2) purchases, repurchases, redemptions or other acquisitions of securities of any wholly owned Subsidiary of the Company by the Company or any other wholly owned Subsidiary of the Company);
(b) merge or consolidate with any other Person, or restructure, recapitalize, dissolve, reorganize or completely or partially liquidate (other than mergers among, or the restructuring, reorganization or liquidation of any wholly owned Subsidiaries of the Company that would not prevent, delay or impair the Merger or the other transactions contemplated by this Agreement), or adopt or effect a plan of complete or partial liquidation or dissolution;
(c) except as required by the terms of any Company Plan, (A) increase the compensation or benefits payable to any Participant, other than (1) de minimis increases in benefits, (2) increases of cash compensation for transactions disclosed employees whose annual base salary is less than $220,000 in the ordinary course of business consistent with past practice not to exceed an aggregate increase of three percent (3%) for all such employees or (3) increases of cash compensation for any employee in connection with a promotion based on job performance or workplace requirements not to exceed a per-employee increase of fifteen percent (15%), (B) grant any new extraordinary bonus, severance, change of control, retention, termination or similar compensation or benefits to any Participant, (C) adopt, establish or make any change to any Company Plan or any collective bargaining agreement, other than changes to Company Plans that are intended to be qualified under Section 401(a) of the Code, or Company Plans that provide health or welfare benefits, in each case, which are made in the ordinary course of business and do not materially increase such Company Plans’ cost to the Company, (D) take any action to accelerate the vesting of, or payment of, any compensation or benefit under any Company Plan, (E) take any action to fund or in any other way secure the payment of compensation or benefits under any Company Plan, (F) hire or terminate the employment of (other than termination for cause) any Participant with annual base salary or fees in excess of $220,000 per year, (G) waive or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement or any other restrictive covenant obligation of any Participant, (H) forgive any loans to any Participant, or (I) effectuate a “plant closing,” “mass layoff” (each as defined in the Workers Adjustment Retraining Notification Act) or other employee mass layoff event affecting in whole or in part any site of employment, facility or operating unit;
(d) incur any Indebtedness or issue any rights to acquire any Indebtedness, or assume guarantee or otherwise become liable for any Indebtedness for any Person, except (i) in the ordinary course of business, borrowings under the Company’s Existing Credit Agreement (provided that the Company shall not be permitted to increase the borrowing capacity existing as of the date hereof under the Existing Credit Agreement), or (ii) inter-company Indebtedness among the Company and its wholly owned Subsidiaries, or (iii)(A) to the extent not drawn upon and payments are not triggered thereby, letters of credit, bank guarantees, security or performance bonds or similar credit support instruments and (B) overdraft facilities or cash management programs, in the case of each clauses (A) and (B) issued, made or entered into in the ordinary course of business;
(e) make or commit to make any capital expenditures, or any obligations or liabilities in connection therewith, greater than the amounts set forth on Section 6.1(e) of the Company Disclosure LetterSchedules, Caza will notexcept for any capital expenditures, and will or any obligations or liabilities in connection therewith which otherwise do not permit exceed $1,000,000 individually, or $2,500,000 in the aggregate;
(f) transfer, lease, license, sell, assign, mortgage, pledge, place a Lien upon, surrender, divest, cancel, abandon, allow to lapse or otherwise dispose of any properties or assets (including capital stock of any of its subsidiaries Subsidiaries but not including any Intellectual Property), with a fair market value in excess of $1,000,000 individually or $2,500,000 in the aggregate (other than (1) transactions among the Company and its wholly owned Subsidiaries, (2) sales of inventory or obsolete or worthless equipment, in each case, in the ordinary course of business, or (3) leases of equipment to customers in the ordinary course of business);
(g) issue, deliver, sell, grant, transfer, or encumber, or authorize the issuance, delivery, sale, grant, transfer or encumbrance of, any shares of its capital stock or other Company Securities, except (i) for any Shares issued pursuant to Company Options, Restricted Stock Units and Performance Restricted Stock Units outstanding on the date of this Agreement in accordance with the existing terms of such awards and the Company Stock Plans, and (ii) for any Shares issued in connection with conversions of the Convertible Notes in accordance with and pursuant to the Convertible Notes Indenture, but subject to Section 6.17(a), or disposition of the Capped Call Transactions upon exercise and settlement or termination thereof in accordance with and pursuant to the Capped Call Documentation, but subject to Section 6.17(c), in each case, that are outstanding on the date hereof, and (iii) for any issuances, sales or transfers of securities of wholly owned Subsidiaries to the Company or to any other wholly owned Subsidiary of the Company (in each case other than Shares);
(h) (i) acquire or commit to acquire any business, whether by merger, purchase of property or assets, consolidation or otherwise or (ii) subject to the foregoing clause (i) and Section 6.1(e), spend or commit to spend in excess of $1,000,000 individually or $2,500,000 in the aggregate to acquire assets or other property (valuing any non-cash consideration at its fair market value as of the date of the agreement for such acquisition);
(i) make any material change with respect to its financial accounting policies or procedures, or revalue in any material respect any of its properties or assets, including writing off notes or accounts receivables, in each case, except as required by changes in GAAP or by applicable Law;
(j) (i) enter into any new line of business, or (ii) start to conduct a line of business of the Company or any of its Subsidiaries in any geographic area where it is not conducted as of the date of this Agreement;
(k) make any loans, advances or capital contributions to, directly or indirectlyinvestments in, do any Person (other than extensions of credit to customers in the ordinary course of business, advances to directors, officers and other employees for travel and other business-related expenses, in each case, in the ordinary course of business and in compliance in all material respects with the Company’s policies related thereto, or loans, advances or capital contributions to the Company or any direct or indirect wholly owned Subsidiary of the following Company);
(l) (i) amend or modify in any material respect or terminate (excluding terminations upon expiration of the term thereof in accordance with the terms thereof) any Material Contract or waive, release or assign any material rights, claims or benefits under any Material Contract or take (or fail to take) any action that would reasonably be expected to cause or result in a material breach of, or material default under, any Material Contract or (ii) other than as contemplated by this Agreement or pursuant to commitments in the ordinary course of business and after consultation with Parent, enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement and disclosed Agreement; provided, that for the avoidance of doubt, subject to Section 6.1(b), this Section 6.1(l) shall not prohibit or restrict any Company Plans;
(m) without limiting the other party in writing or otherwise disclosed to the other partyrights of Parent under Section 6.16 (Stockholder Litigation), without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sellsettle, pledgewaive, dispose release compromise or otherwise resolve any Proceeding in a manner resulting in liability for, or restrictions on the conduct of the business by, the Company or encumber any assetsof its Subsidiaries, except other than settlements, waivers or releases of, or compromises for or resolutions of any Proceeding unrelated to Intellectual Property if the amount of any such settlement is not in excess of $1,000,000 individually or $2,500,000 in the ordinary course aggregate; provided, that such settlements do not involve any non-de minimis injunctive or equitable relief or impose non-de minimis restrictions on the business activities of businessthe Company and its Subsidiaries or Parent and its Subsidiaries; or (ii) expend or commit waive any material right with respect to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, material claim held by the Offeror in writingCompany or any of its Subsidiaries; or
(n) fail to maintain, which for greater certaintycancel, shall not be subject terminate or allow to the covenants set forth in this Section 7.1(c); lapse without a commercially reasonable substitute therefor, any material License;
(iiiA) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than in the ordinary course of business, make terminate, fail to renew, abandon, cancel, let lapse, fail to continue to prosecute or defend, encumber, license (including through covenants not to xxx, non-assertion provisions or releases, immunities from suit that relate to Intellectual Property or any investment, either by purchase option to any of shares or securities, contributions of capital (other than to subsidiariesthe foregoing), property transfersell, ortransfer or otherwise dispose of any Company IP; (B) issue, except bring, commence, threaten or settle any litigation or other proceedings with respect to any Patent comprised in the ordinary course of businessCompany IP; or (C) become a member or promoter of, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entitya contributor to, or make any loans material commitments or advancesmaterial agreements regarding any patent pool, industry standards body, standard setting organization, industry or other trade association or similar organization, in each case that requires or obligates, or could require or obligate, the Company or any of its Affiliates (including future Affiliates) to grant or offer to any other Person any license or other right to any Intellectual Property;
(p) enter into, or agree to enter into, any Contract that could directly or indirectly obligate or purport to obligate (i) Parent or its Affiliates (other than the Company and its Subsidiaries) or (ii) the Company or any of its Subsidiaries to cause or require, or purport to cause or require, Parent or its Affiliates (other than the Company and its Subsidiaries), in any such case, to (A) grant to any other Person (including the counterparty to such Contract and/or its Affiliates) any right to or with respect to any Intellectual Property or (B) be bound by, or subject to, any license or covenant (including any covenant not to xxx, assert rights or offer fixed or reasonable royalties) with respect to any Intellectual Property; (q) (A) settle any material Tax claim, audit, or assessment for an amount materially in excess (other than by a de minimis amount) of the amount reserved or accrued on the Company Balance Sheet (or most recent consolidated balance sheet included in the Company Reports), (B) change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (C) make any material amendment to any Tax Returns, (D) surrender or waive any right to claim a material Tax refund or (E) consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(r) terminate, cancel, make any material changes to the structure or terms, or materially reduce the limits or conditions of any of the Insurance Policies, including allowing the policies to expire without renewing such policies or obtaining comparable replacement coverage, or prejudicing rights to insurance payments or coverage; or
(s) agree, resolve or commit to do any of the foregoing.
Appears in 1 contract
Interim Operations. During the period (a) The Company shall, and shall cause each of its Subsidiaries to, from and after the date of execution of this Agreement and ending on until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VIII, unless Parent shall otherwise approve in writing, and except as otherwise expressly required by this Agreement, required in order to comply with applicable Law or required in order to comply with COVID-19 Measures or deemed advisable by the Company, acting reasonably, in connection with the termination or modification of COVID-19 Measures, use commercially reasonable efforts to conduct its business in the Ordinary Course of Business, in all material respects, and, to the extent consistent therewith, shall use and cause each of its Subsidiaries to use their commercially reasonable efforts to maintain its and its Subsidiaries’ relations and goodwill with Governmental Entities, customers, suppliers, distributors, and employees. Without limiting the generality of and in furtherance of the foregoing sentence, from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VIII, except (i) as otherwise expressly required (A) by this Agreement, (B) by any Governmental Entity, (C) to comply with (1) applicable Law, or (2) the terms of any Material Contract binding on the Company or any of its Subsidiaries in effect prior to the date of this Agreement, (ii) as approved in writing by Parent (such approval not to be unreasonably conditioned, withheld or delayed) or (iii) set forth in the corresponding subsection of Section 6.01(a) of the Company Disclosure Schedule, the Company shall not and shall cause its Subsidiaries not to:
(i) adopt any change in its Organizational Documents;
(ii) merge or consolidate with any other Person, except for any such transactions solely among Wholly Owned Subsidiaries of the Company or transactions permitted by Section 6.01(a)(iii), or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its properties, assets, operations or businesses;
(iii) (A) acquire by merger or consolidation with, or (B) without the prior written consent of Parent (not to be unreasonably conditioned, withheld or delayed), purchase any, all or substantially all of the Offerorassets of, acting reasonablyany corporation, and except as otherwise required by law partnership, association, joint venture or expressly permitted other business organization or specifically contemplated by this Agreement:division thereof;
(aiv) Caza covenants and agrees that transfer, sell, lease, license, divest, cancel, abandon, allow to lapse or expire, or otherwise dispose of, or incur, permit or suffer to exist the creation of any Encumbrance (other than any Permitted Encumbrances) upon, any material properties or assets (tangible or intangible, including any Intellectual Property Rights), product lines or businesses of the Company or any of its business shall be conducted only Subsidiaries, including capital stock or other equity interests of any of its Subsidiaries, except in connection with (A) sales of obsolete assets (not including Intellectual Property Rights), (B) sales, leases, or other dispositions of inventory, rental fleet or other goods (not including Intellectual Property Rights) in the usual Ordinary Course of Business and ordinary course (C) non-exclusive licenses of business consistent Intellectual Property Rights entered into in the Ordinary Course of Business;
(v) issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, Encumber or otherwise enter into any Contract or other agreement, understanding or arrangement with past practicesrespect to the voting of, and it shall use all commercially reasonable efforts any shares of capital stock of the Company (including, for the avoidance of doubt, Shares) or capital stock or other equity interests of any of its Subsidiaries, securities convertible or exchangeable into or exercisable for any such shares of capital stock or other equity interests, or any options, warrants or other rights of any kind to maintain and preserve its businessacquire any such shares of capital stock, assets and advantageous business relationships. Caza shall consult with other equity interests or such convertible or exchangeable securities (other than the Offeror issuance of shares of such capital stock, other equity securities, or convertible or exchangeable securities (A) by a Wholly Owned Subsidiary of the Company to the Company or another Wholly Owned Subsidiary of the Company or (B) in respect of its ongoing business Company Equity Awards outstanding as of the date of this Agreement in accordance with their terms and affairs and keep the Offeror apprised of all material developments relating theretoapplicable Stock Plan in effect on the Capitalization Date);
(bvi) Caza shall not, directly make any loans or indirectly, do or permit advances of money to occur any of the following:
(i) amend its constating documents; (ii) issue Person (other than on exercise or surrender of currently outstanding Caza Optionsthe Company and its Subsidiaries), grantexcept for advances to employees or officers of the Company or any of its Subsidiaries pursuant to any advancement obligations under the Company’s or any Subsidiary’s Organizational Documents or indemnification agreement in effect on the date hereof or for expenses incurred in the Ordinary Course of Business;
(vii) declare, sell set aside, make or pledge pay any dividend or agree other distribution, payable in cash, stock, property or otherwise, with respect to issueany of its capital stock or other equity interests (including with respect to the Company, grantfor the avoidance of doubt, sell Shares), except for (A) dividends paid by any Wholly Owned Subsidiary to the Company or pledge to any securities other Wholly Owned Subsidiary of Cazathe Company or (B) dividends required to be paid with respect to the Series B Preferred Stock or the Series C Preferred Stock pursuant to the Series B Certificate of Designation or the Series C Certificate of Designation, respectively;
(viii) reclassify, split, combine, subdivide or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securitiesor offer to redeem, except as permitted pursuant to the terms thereof purchase or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries toacquire, directly or indirectly, do any of its capital stock, other equity interests or securities convertible or exchangeable into or exercisable for any shares of its capital stock or other equity interests (including with respect to the following Company, for the avoidance of doubt, Shares), other than the withholding or use of Shares to satisfy the payment of the exercise price on the exercise of a Company Option or withholding Tax obligations upon the exercise, vesting or settlement of Company Equity Awards outstanding as of the date of this Agreement, in each case, in accordance with their terms and, as applicable, the Stock Plans as in effect on the Capitalization Date;
(ix) adopt or implement any stockholder rights plan or similar arrangement;
(x) form any Subsidiary or enter into any joint venture, partnership, limited liability corporation, strategic alliance or similar arrangement;
(xi) incur any Indebtedness (including the issuance of any debt securities, warrants or other rights to acquire any debt security), except for (A) Indebtedness in replacement of existing Indebtedness for borrowed money on terms substantially consistent with or more favorable to the Company than the Indebtedness being replaced; (B) Indebtedness pursuant to the Company’s existing credit facilities listed on Section 6.01(a)(xi) of the Company Disclosure Schedule as in effect as of the date hereof; (C) Indebtedness for capitalized leases (including finance or operating leases), or Indebtedness in respect of the deferred and unpaid purchase price of property or equipment, in each case incurred in the Ordinary Course of Business, provided that such Indebtedness may not exceed $2,500,000 in the aggregate; (D) Indebtedness incurred (1) by the Company that is owed to any Wholly Owned Subsidiary or (2) by any Wholly Owned Subsidiary that is owing to the Company or any other Wholly Owned Subsidiary; or (E) guarantees of Indebtedness of its Wholly Owned Subsidiaries otherwise incurred in compliance with this Section 6.01(a);
(xii) make or authorize any payment of, or accrual or commitment for, capital expenditures, except (A) those contemplated by the Company’s capital expenditure forecast for the relevant fiscal year, which capital expenditure forecast has been made available to Parent prior to the date of this Agreement, and (B) any unforecasted capital expenditure, with respect to this clause (B) in an amount not to exceed $5,000,000 in the aggregate;
(xiii) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement, other than Contracts with customers or suppliers entered into in the Ordinary Course of Business;
(xiv) other than with respect to Material Contracts related to Indebtedness, which shall be governed by Section 6.01(a)(vi) and Section 6.01(a)(xi), terminate, not renew (by exercising an applicable non-renewal right, or by not exercising an applicable renewal right), or in any material respect amend or otherwise modify or waive, or assign, convey, Encumber or otherwise transfer, in whole or in part, rights or interest pursuant to or in, any Material Contract, other than expirations or non-renewals of any such Contract in the Ordinary Course of Business and in accordance with the terms of such Contract with no further action by the Company or any of its Subsidiaries, except for any ministerial actions;
(xv) cancel, modify or waive any debts or similar claims held by the Company or any of its Subsidiaries having in each case a value in excess of $500,000 individually or $1,000,000 in the aggregate;
(xvi) amend any License contemplated by Section 4.05(d) in any material respect, or allow any such License to lapse, expire or terminate (except where the lapse, expiration or termination of any such License is with respect to a License that has become obsolete, redundant or no longer required by applicable Law);
(xvii) other than with respect to Transaction Litigation, any Proceeding in connection with, arising out of or otherwise related to a demand for appraisal under Section 262 of the DGCL or any Tax claim, audit, assessment or dispute, which shall be governed by Section 6.11, Section 3.02(f) and Section 6.01(a)(xix), respectively, settle or compromise any Proceeding for an amount in excess of $500,000 in the aggregate, or which would reasonably be expected to (A) prevent, materially delay or materially impair the consummation of the transactions contemplated by this Agreement, (B) have a materially negative impact on the operations and reputation of the Company and its Subsidiaries or (C) involve any criminal liability, any admission of material wrongdoing or any material wrongful conduct by the Company or any of its Subsidiaries;
(xviii) make any changes with respect to accounting policies or procedures, except, in each case, as required by changes in GAAP;
(xix) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to material Taxes, settle any material Tax claim, audit, assessment or dispute, surrender any right to claim a material refund, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of any material Tax, or take any action which would be reasonably expected to result in a material increase in the Tax liability of the Company or its Subsidiaries, or, in respect of any taxable period (or portion thereof) ending after the Closing Date, the Tax liability of Parent or its Affiliates;
(xx) except as required pursuant to the terms of any Company Benefit Plan in effect as of the date of this Agreement or pursuant to commitments as required by applicable Law or the terms of this Agreement, (A) increase in any manner the compensation or consulting fees, bonus, or other benefits, severance or termination pay of any current or former director, officer, employee or other service provider, (B) become a party to, establish, adopt, amend, commence participation in or terminate any Company Benefit Plan or any arrangement that would have been a Company Benefit Plan had it been entered into prior to the date of this Agreement Agreement, other than in connection with routine, immaterial or ministerial amendments to health and disclosed welfare plans that do not materially increase benefits or result in a material increase in administrative costs, (C) grant any new awards, or amend or modify the terms of any outstanding awards (including, in each case, Company Equity Awards), under any Company Benefit Plan, (D) take any action to accelerate the vesting or lapsing of restrictions or payment, or fund or in any other party in writing way secure the payment, of compensation or otherwise disclosed benefits under any Company Benefit Plan, (E) change any actuarial or other assumptions used to the other party, without the prior consent of the other party, such consent not calculate funding obligations with respect to any Company Benefit Plan that is required by applicable Law to be unreasonably withheld: (i) sell, pledge, dispose of funded or encumber any assetschange the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, (F) forgive any loans or issue any loans to any current or former director, officer, employee or other service provider (other than routine travel advances issued in the ordinary course Ordinary Course of businessBusiness), (G) hire any employee or engage any independent contractor (who is a natural person) with total cash compensation (an annual salary or wage rate or consulting fees and target annual cash bonus opportunity) in excess of $175,000, or (H) terminate the employment of any employee other than for cause;
(xxi) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, labor organization, works council or similar organization; or
(iixxii) expend agree, authorize or commit to expend do any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants foregoing.
(b) Nothing set forth in this Section 7.1(c); (iii) reorganizeAgreement shall give Parent, amalgamate, merge directly or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible forindirectly, the obligation of any other individual right to control or entitydirect the Company’s or its Subsidiaries’ operations prior to the Effective Time or give the Company, directly or make any loans indirectly, the right to control or advances;direct the Parent’s or its Subsidiaries’ operations prior to the Effective Time.
Appears in 1 contract
Interim Operations. During the period from the date (a) The Company shall, and shall cause each of execution of this Agreement and ending on its Subsidiaries to, until the earlier of the Effective Time and the termination of this AgreementAgreement pursuant to Article IX (unless (I) Parent shall otherwise approve in writing, except with the prior written consent of the Offerorwhich approval shall not be unreasonably withheld, acting reasonablyconditioned or delayed, and except as otherwise (II) expressly contemplated or required by law or expressly permitted or specifically contemplated by this Agreement:
, applicable Law, (aIII) Caza covenants and agrees that its business shall be conducted only as set forth in Section 7.1(a) of the Company Disclosure Schedule or (IV) with respect to actions taken or omitted by, or at the specific direction of, any Specified Person taken at the direction of BK or with BK’s consent (the exceptions set forth in the usual and ordinary course of business consistent with past practicesforegoing clauses (I) – (IV), and it shall the “Interim Covenant Exceptions”), use all commercially reasonable efforts to maintain conduct its business in the Ordinary Course of Business and, to the extent consistent therewith, shall use and preserve cause each of its businessSubsidiaries to use their respective commercially reasonable efforts to (x) maintain, assets in all material respects, its and advantageous its Subsidiaries’ relations and goodwill with Governmental Entities, customers, suppliers, licensors, licensees, distributors, creditors, lessors, employees, consultants, agents and business relationshipsassociates and (y) keep available, in all material respects, the services of the employees and consultants of the Company and Subsidiaries. Caza shall consult Without limiting the generality of and in furtherance of the foregoing sentence, at all times during the period commencing with the Offeror in respect execution and delivery of its ongoing business this Agreement and affairs and keep continuing until the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any earlier of the following:Effective Time and the termination of this Agreement pursuant to Article IX, except pursuant to any Interim Covenant Exception, the Company shall not (and shall cause its Subsidiaries not to):
(i) amend adopt any change in its constating documents; Organizational Documents, other than immaterial amendments to applicable organizational documents of the Company’s Wholly Owned Subsidiaries;
(ii) issue merge or consolidate with any other Person, or restructure, reorganize or completely or partially liquidate, in each case except for any such transactions solely among Wholly Owned Subsidiaries of the Company;
(iii) acquire, directly or indirectly by merger, consolidation, acquisition of stock or assets or otherwise, any business, Person, properties (including real properties) or assets from any other Person with a fair market value or purchase price in excess of $5 million in the aggregate, in each case, including any amounts or value reasonably expected to be paid in connection with a future earn-out, purchase price adjustment, release of “holdback” or similar contingent payment obligation, or that would reasonably be expected to prevent, materially delay or materially impair the ability of the Company or any of its Subsidiaries to consummate the transactions contemplated by this Agreement by the Outside Date, other than acquisitions of inventory or assets, goods or properties in the Ordinary Course of Business;
(iv) transfer, sell, convey, lease, sublease, license, pledge, mortgage, assign, divest, grant any option in, cancel or otherwise abandon or dispose of, or incur, permit or suffer to exist the creation of any Encumbrance (other than on exercise Permitted Encumbrances) upon, any properties (including any Real Property) or surrender assets (tangible or intangible, but other than Intellectual Property which is addressed in Section 7.1(a)(xx)), product lines or businesses of currently outstanding Caza Options)the Company or any of its Subsidiaries, including capital stock or other equity interests of any of its Subsidiaries, except in connection with (A) sales of obsolete assets in the Ordinary Course of Business, (B) sales or other dispositions of franchises or dealer locations in the Ordinary Course of Business, (C) sales, leases, or other dispositions of assets (not including services) with a fair market value not in excess of $5 million in the aggregate in the Ordinary Course of Business and (D) sales of receivables in securitization or factoring transactions;
(v) issue, deliver, sell, pledge, dispose of, grant, sell or pledge or agree to issuetransfer, grantlease, sell or pledge any securities of Cazalicense, or securities convertible into or exchangeable or exercisable forguarantee, Encumber, or otherwise evidencing a right enter into any Contract with respect to acquirethe voting of, any shares of capital stock of the Company (including, for the avoidance of doubt, Shares) or capital stock or other equity or equity-based interests of any of its Subsidiaries, securities convertible or exchangeable into or exercisable for any such shares of Caza; capital stock or other equity interests, or any options, warrants or other rights of any kind to acquire any such shares of capital stock, other equity interests or such convertible or exchangeable securities (iiiother than (A) the Voting Agreement or (B) the issuance of shares of such capital stock, other equity securities or convertible or exchangeable securities in respect of Company Equity Awards outstanding as of the date of this Agreement in accordance with their terms and, as applicable, the Stock Plans in effect on the Capitalization Time;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than to or from the Company and any of its Wholly Owned Subsidiaries) in excess of $2 million individually or $5 million in the aggregate, except for extensions of credit to customers in the Ordinary Course of Business;
(vii) declare, set aside, establish a record date for, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or other equity interests (including with respect to the Company, for the avoidance of doubt, Shares), except for dividends (A) paid by any Wholly Owned Subsidiary to the Company or to any other Wholly Owned Subsidiary of the Company and (B) dividends payable to the holders of Series A Preferred Shares, payable in cash in an amount not to exceed $1.875 per Series A Preferred Share annually, in accordance with the terms of the Certificate of Designation;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire or offer to do any of the foregoing, any of its capital stock, other equity interests or securities convertible or exchangeable into or exercisable for any shares of its capital stock or other equity interests (including with respect to the Company, for the avoidance of doubt, Shares);
(ix) incur, assume, repurchase or prepay or guarantee or endorse or otherwise become responsible for any Indebtedness for borrowed money (including the issuance of any debt securities, warrants or other rights to acquire any debt security), except for (A) trade payables incurred in the Ordinary Course of Business, (B) pursuant to Existing Indebtedness (including borrowings under the ABL Credit Agreement), (C) any refinancing, extension, renewal or replacement of any outstanding securitiesIndebtedness of the Company, in the case of this clause (C), that does not increase the principal amount of Indebtedness outstanding, (D) the incurrence of Indebtedness for borrowed money in the Ordinary Course of Business not to exceed $5 million in the aggregate in the case of this subclause (D), or (E) the renewal and refinancing of any Insurance Policies;
(x) make or authorize any payment of, or accrual or commitment for, capital expenditures, except to the extent set forth in the line items of the Company’s capital budget set forth in Section 7.1(a)(x) of the Company Disclosure Schedule;
(xi) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement, other than any Material Contract permitted by Section 7.1(a)(ix)(C) and in the Ordinary Course of Business;
(xii) terminate, fail to renew or amend or otherwise modify or waive or assign, convey, Encumber or otherwise transfer, in whole or in part, rights or interest pursuant to or in, any Material Contract, other than expirations or non-renewals of any such Contract in the Ordinary Course of Business and in accordance with the terms of such Contract with no further action by the Company, any of its Subsidiaries or other party to such Contract;
(xiii) cancel, modify or waive any debts or claims held by or owed to the Company or any of its Subsidiaries except as canceled, modified, or waived in the Ordinary Course of Business not to exceed $1 million individually or $2 million in the aggregate;
(xiv) amend any material License contemplated by Section 5.5(b)(i) in any material respect, or allow any such material License to lapse, expire or terminate (except where the lapse, expiration or termination of any such License is with respect to a License that has become obsolete, redundant or no longer required by applicable Law);
(xv) amend, modify, terminate, cancel or let lapse any Insurance Policy or fail to file any claims thereunder in a timely manner as required under such Insurance Policies;
(xvi) sell inventory outside of the Ordinary Course of Business or fail to order, maintain and manage levels of inventory consistent with the levels ordered, maintained and managed by the Company in the Ordinary Course of Business;
(xvii) settle, pay, discharge or compromise any Proceeding for an amount in excess of $2 million individually or $4 million in the aggregate during any calendar year or on a basis that would result in the imposition of any Order that would restrict the future activity or conduct of the Company or any of its Subsidiaries or a finding or admission of a violation of Law or violation of the rights of any Person, or which would reasonably be expected to prevent, materially delay or materially impair the consummation of the transactions contemplated by this Agreement by the Outside Date;
(xviii) make any material changes with respect to financial accounting policies or procedures, except as permitted required by changes in GAAP (as confirmed in writing by the Company’s independent registered public accounting advisor);
(xix) other than in the Ordinary Course of Business, (A) make, change or revoke any material Tax election or change any material Tax accounting method, (B) file any material amended Tax Return, (C) enter into, cancel or modify any closing agreement with respect to a material amount of Taxes, (D) settle or otherwise compromise any Tax claim, audit, assessment or dispute with respect to a material amount of Taxes, in the case of clause (C), (D) or (E), for an amount materially in excess of the amount reserved for Taxes on the financial statements of the Company, (E) surrender any right to claim a refund with respect to a material amount of Taxes, (F) request any material ruling with respect to Taxes, (G) agree to an extension or waiver of the statute of limitations with respect to any material Taxes (in each case, other than in connection with extensions of time to file Tax Returns that are automatic or automatically granted or otherwise constitute ordinary course extensions), or (H) enter into any material Tax indemnification, sharing, allocation or similar agreement or arrangement (other than customary provisions under any commercial, leasing, financing, employment or other agreement entered into in the ordinary course of business no principal purpose of which relates to Taxes);
(xx) transfer, sell, lease, license or otherwise dispose of, grant a covenant not to sue or other right under, abandon, cancel or allow to lapse or expire any Company Intellectual Property, other than (A) non-exclusive licenses granted in the Ordinary Course of Business, or (B) abandonments, cancellation, lapses or expiry of Company Intellectual Property that is not material to the Company’s or its Subsidiaries’ respective businesses.
(xxi) except as required by applicable Law or pursuant to the terms thereof or of any Company Benefit Plan in effect as permitted in accordance with or contemplated by of the date of this Agreement; , (ivA) splitmaterially increase in any manner the cash compensation or consulting fees, combine bonus opportunity, severance or reclassify termination pay of any of its securities; current or former Company Employee, except for (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property1) in respect of its outstanding securities without the consent of the Offerorthose Company Employees who are not officers, which consent may be withheld increases in annual salary, wage rate or consulting fees in the Offeror’s sole Ordinary Course of Business that do not exceed four percent (4%) in the aggregate, and absolute discretion; any consequent increases in severance or termination pay, and (vii2) enter into in respect of all Company Employees, the payment of annual bonuses for completed periods based on actual performance, if applicable, in the Ordinary Course of Business, (B) become a party to, establish, adopt, amend, commence participation in or terminate any material Company Benefit Plan, except for renewals in the Ordinary Course of Business, (C) grant any new equity-based awards, or amend or modify the terms of any contractoutstanding equity-based awards, agreementunder any Stock Plan, commitment (D) take any action to accelerate the vesting or arrangement lapsing of restrictions or payment, or fund or in any other way secure the payment, of compensation or benefits under any Stock Plan, except as contemplated under the terms of this Agreement, (E) materially change any actuarial or other assumptions used to calculate funding obligations with respect to any of Company Benefit Plan that is required by applicable Law to be funded or change the foregoing manner in which contributions to such plans are made or the basis on which such contributions are determined, except as otherwise permitted may be required by GAAP, (F) forgive any loans or contemplated by this Agreementissue any loans to any current or former Company Employee (other than routine travel and other expense advances issued in the Ordinary Course of Business), (G) hire any Company Employee above the level of Vice President (as such term is used to reflect corporate Vice Presidents); or (H) terminate without cause the employment of any Company Employee above the level of Vice President (as such term is used to reflect corporate Vice Presidents);
(cxxii) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other similar agreement with a labor union, labor organization, works council or similar organization, except for transactions disclosed renewals in the Disclosure LetterOrdinary Course of Business; or
(xxiii) agree, Caza will not, and will not permit authorize or commit to do any of its subsidiaries tothe foregoing.
(b) Nothing set forth in this Agreement shall give Parent, directly or indirectly, do any of the following other than as contemplated by this Agreement right to control or pursuant to commitments entered into direct the Company’s or its Subsidiaries’ operations prior to the date of this Agreement and disclosed Effective Time or give the Company, directly or indirectly, the right to control or direct the Parent’s or its Subsidiaries’ operations prior to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;Effective Time.
Appears in 1 contract
Interim Operations. During (a) Except as set forth in Section 6.1 of the period from Company Disclosure Letter, the Company covenants and agrees that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing, except with the prior written consent of the Offeror, acting reasonablysuch approval not to be unreasonably withheld or delayed, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants Agreement and agrees that its except as required by applicable Laws), the Company’s business shall be conducted only in the ordinary and usual and ordinary course of business consistent with past practicespractice and, to the extent consistent therewith, the Company shall use its reasonable best efforts to preserve its business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, Employees, sales representatives and business associates and keep available the services of the Company’s present Employees and agents. Without limiting the generality of the foregoing, and it shall use all commercially reasonable efforts in furtherance thereof, from the date hereof until the Effective Time, except (A) as otherwise expressly required by this Agreement or applicable Law, (B) as Parent may approve in writing (such approval not to maintain and preserve its businessbe unreasonably withheld or delayed) or (C) as set forth in Section 6.1 of the Company Disclosure Letter, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza Company shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend adopt or propose any change in its constating documents; certificate of incorporation or bylaws or other applicable governing instruments;
(ii) issue (merge or consolidate the Company with any other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of CazaPerson, or securities convertible into restructure, reorganize or exchangeable completely or exercisable for, partially liquidate or otherwise evidencing a right to acquireenter into any agreements or arrangements imposing material changes or restrictions on its assets, securities of Caza; operations or businesses;
(iii) redeemacquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $250,000 in any transaction or series of related transactions, purchase or otherwise acquire any of its outstanding securities, except as permitted other than acquisitions pursuant to the terms thereof or Contracts in effect as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any date of the foregoing except as otherwise permitted or contemplated by this Agreement;
(civ) except for transactions disclosed in issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or authorize the Disclosure Letterissuance, Caza will notsale, and will not permit pledge, disposition, grant, transfer, lease, license, guarantee, or encumbrance of, any shares of its subsidiaries to, directly or indirectly, do any capital stock of the following Company (other than the issuance of shares in respect of the exercise of Company Options outstanding as contemplated by this Agreement or pursuant to commitments entered into prior to of the date of this Agreement and disclosed in accordance with their terms and, as applicable, the Stock Plan as in effect as of the date of this Agreement), or securities convertible or exchangeable into, exercisable for or with a value measured by reference to any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) create or incur any Lien material to the other party in writing or otherwise disclosed to the other party, without the prior consent Company on any assets of the Company having a value in excess of $250,000;
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except than in the ordinary course of business; (ii) expend or commit to expend any amounts in respect excess of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made $100,000 in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital aggregate;
(other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (vvii) incur any indebtedness for borrowed money or any other material liability or obligation guarantee such indebtedness of another Person, or issue or sell any debt securities or assumewarrants or other rights to acquire any debt security of the Company, guaranteeexcept for indebtedness that will constitute Funded Debt as of the Closing;
(viii) except as set forth in the capital budgets in Section 6.1(a)(viii) of the Company Disclosure Letter and consistent therewith, endorse make or authorize any capital expenditure in excess of $250,000 in the aggregate during any twelve (12)-month period;
(ix) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement;
(x) make any changes with respect to accounting policies or procedures, except as required by changes in applicable generally accepted accounting principles;
(xi) settle any actions, suits, claims, hearings, arbitrations, investigations or other proceedings before a Governmental Entity for an amount in excess of $100,000 or any obligation or liability of the Company in excess of such amount;
(xii) other than in the ordinary course of business consistent with past practice, (a) amend, modify or terminate any Material Contract or (b) cancel, modify or waive any debts or claims held by it or waive any rights having in each case a value in excess of $100,000;
(xiii) (A) make, change, or rescind any Tax election, (B) file any amended Tax Return, (C) adopt or change any method or period of Tax accounting, (D) settle or compromise any claim, audit, assessment or dispute relating to Taxes; (E) surrender any claim for a refund of Taxes; (F) enter into any closing agreement relating to Taxes; (G) file any Tax Return that is inconsistent with past practice unless as otherwise required by applicable Law; (H) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business); or (I) take any other action related to Taxes which is reasonably likely to result in a material increase in the Tax liability of the Company, or, in respect of any taxable period (or portion thereof) ending after the Closing Date, the Tax liability of the Parent or the Surviving Corporation;
(xiv) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise as an accommodation become responsible fordispose of any assets, licenses, operations, rights, product lines, businesses or interests therein of the Company, except in connection with services provided in the ordinary course of business and sales of obsolete assets and except for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $250,000 in the aggregate, other than pursuant to Contracts in effect prior to the date hereof; provided, that with respect to Intellectual Property, the obligation foregoing shall be limited to granting non-exclusive licenses in the ordinary course of business consistent with past practice with a fair market value under the foregoing threshold;
(xv) assign or grant an exclusive license of any other individual material right in any Intellectual Property of the Company necessary or entityuseful for the manufacture, use, sale, offer for sale or export of any Medical Device or that otherwise enables a third party to compete with the Company with respect to the manufacture or sale of any product that competes with any Medical Device;
(xvi) except as required pursuant to existing written, binding agreements in effect prior to the date hereof, as set forth in Section 5.1(j)(i) of the Company Disclosure Letter, or make as otherwise required by applicable Law, (A) grant or provide any severance or termination payments or benefits to any director, officer, employees or consultants of the Company, (B) increase in any manner the compensation or consulting fees, bonus, pension, welfare, fringe, severance, termination pay or other benefits of, pay any bonus to, any current or former director, officer, employee or consultant (who is a natural person) of the Company, (C) grant any new awards, or amend or modify the terms of any outstanding awards, under any Benefit Plan, (D) become a party to, establish, adopt, commence participation in, amend or terminate any Benefit Plan or any arrangement that would have been a Benefit Plan had it been entered into prior to this Agreement, (E) take any action to accelerate the vesting, lapsing of restrictions or payment in respect of any award or benefit provided pursuant to any Benefit Plan, (F) fund or in any other way secure the payment of compensation or benefits under any Benefit Plan, (G) hire any employee or engage any consultant (who is a natural person), (H) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, (I) forgive any loans or advancesissue any loans to any current or former directors, officers, employees or consultants (who are natural persons) of the Company, or (J) terminate the employment of any employee other than for cause;
(xvii) become a party to, establish, adopt, amend or commence participation in any collective bargaining agreement or other agreement with a labor union, works council or similar organization;
(xviii) take any action or omit to take any action that would reasonably be expected to result in any of the conditions to the Merger set forth in Article VII not being satisfied;
(xix) engage in (A) any trade loading practices or any other promotional sales or discount activity or other practice with the intent and effect of accelerating to pre-Closing periods sales to the trade or otherwise that would otherwise be expected (in the ordinary course of business) to occur in post-Closing periods, (B) any practice with the intent and effect of accelerating collections to pre-Closing periods receivables that would otherwise be expected (in the ordinary course of business) to be in post-Closing periods, (C) any practice with the intent and effect of postponing to post-Closing payments by the Company that would otherwise be expected (in the ordinary course of business) to be made in pre-Closing periods, or (D) any promotional sales, discount activity, deferred revenue activity or inventory overstocking or understocking activity, in each case in this clause (D) in a manner outside the ordinary course of business;
(xx) sell, transfer or otherwise move any Inventory from the Company other than in the ordinary course of business or hold, or take any action to facilitate or permit its distributors to hold, more than ninety (90) days of Inventory at any time at or prior to the Closing other than in the ordinary course of business;
(xxi) form a Subsidiary; or
(xxii) agree, authorize or commit to do any of the foregoing.
(b) Prior to making any written or oral communications to the officers, employees or consultants of the Company pertaining to compensation or benefit matters that are affected by the Transactions, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
(c) The Company shall (i) consult with Parent in connection with any proposed meeting with the FDA or any other Governmental Entity relating to any Medical Device, (ii) promptly inform Parent of, and provide Parent with a reasonable opportunity to review, any material filing proposed to be made by or on behalf of the Company, and any material correspondence or other material communication proposed to be submitted or otherwise transmitted to the FDA or any other Governmental Entity by or on behalf of the Company, (iii) keep Parent promptly informed of (A) any material communication (written or oral) with or from the FDA or any other Governmental Entity and (B) any material communications (written or oral) received from any Person relating to the Intellectual Property of the Company, (iv) promptly inform Parent and provide Parent or Merger Sub with a reasonable opportunity (but no more than three (3) business days) to comment, in each case, prior to making any material change to any study protocol, adding any new trial, making any material change to a manufacturing plan or process, making any material change to a development timeline or initiating, or making any material change to, promotional or marketing materials or activities relating to any Medical Device, and (v) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s compliance with any and all relevant Laws, compliance programs, and procedures, and give due consideration to any resulting recommendations provided by Parent’s representative.
(d) The Company shall use reasonable best efforts through the Closing Date to obtain any and all agreements, in duly executed form, necessary to effect the assignment to the Company of any Intellectual Property rights arising from services performed for the Company by all Employees of, and all consultants and independent contractors to, the Company who have contributed in any material respect to the creation or development of any Intellectual Property owned by the Company.
(e) Notwithstanding the foregoing, nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the Company prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations, finances and employees.
(f) Parent shall not knowingly take or permit any action that is reasonably likely to prevent the consummation of the Merger.
Appears in 1 contract
Samples: Merger Agreement (Conmed Corp)
Interim Operations. During (a) The Company covenants and agrees as to itself and its Subsidiaries that, from and after the period from the date of execution of this Agreement and ending on prior to the earlier of the First Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing, except with the prior written consent of the Offerorwhich approval shall not be unreasonably withheld, acting reasonablyconditioned or delayed, and except as otherwise (1) required by law or applicable Law, (2) expressly permitted or specifically contemplated required by this Agreement:
Agreement or (a3) Caza covenants and agrees that otherwise expressly disclosed in Section 6.1(a) of the Company Disclosure Letter), the Company shall use its reasonable best efforts to conduct its business shall be conducted only and the business of its Subsidiaries in the usual and ordinary course of business consistent with past practicespractice and each of the Company and its Subsidiaries shall, subject to compliance with the specific matters set forth below, use reasonable best efforts to preserve its business organization intact and maintain the existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, licensors, creditors, lessors, employees and business associates and others having material business dealings with it (including material content providers, studios, authors, producers, directors, actors, performers, guilds, announcers and advertisers) and keep available the services of the Company and its Subsidiaries’ present employees and agents. Without limiting the generality of, and it shall use all commercially reasonable efforts in furtherance of, the foregoing, the Company covenants and agrees as to maintain itself and preserve its businessSubsidiaries that, assets from and advantageous business relationships. Caza shall consult with after the Offeror date of this Agreement and prior to the First Effective Time, except (A) as required by applicable Law, (B) as Parent may approve in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
writing (bsuch approval not to be unreasonably withheld, conditioned or delayed), (C) Caza shall not, directly or indirectly, do or permit to occur any as expressly disclosed in Section 6.1(a) of the following:
Company Disclosure Letter or (iD) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted expressly provided for in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, Company shall not and will not permit any of its subsidiaries Subsidiaries to, directly :
(i) (A) amend its certificate of incorporation or indirectly, do bylaws (or comparable governing documents) (other than amendments to the governing documents of any wholly owned Subsidiary of the following Company that would not prevent, materially delay or materially impair the Initial Merger or the other than as transactions contemplated by this Agreement Agreement), (B) split, combine, subdivide or pursuant to commitments entered into prior to the date reclassify its outstanding shares of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent capital stock (except for any such transaction by a wholly owned Subsidiary of the other party, Company which remains a wholly owned Subsidiary after consummation of such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(ctransaction); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;,
Appears in 1 contract
Samples: Merger Agreement
Interim Operations. During In furtherance of, and without limiting, the period foregoing Section 6.2, from the date of execution of this Agreement and ending on the earlier of until the Effective Time and the termination of this AgreementTime, except with the prior written consent of the Offeror, acting reasonably, and except (w) as otherwise required by law or expressly permitted or specifically contemplated by this Agreement, (x) as expressly required by applicable Law, (y) as Parent may approve in writing (which approval shall not be unreasonably withheld, conditioned or delayed) or (z) as set forth in Section 6.3 of the MLP Disclosure Letter, each of the MLP Entities (and with respect to Section 6.3(a) below, GP Holdings) will not and will not permit any of MLP’s Subsidiaries to, and GP Holdings will not permit any MLP Group Entity to, directly or indirectly:
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Optionsincluding issuing any certificate in connection therewith), grant, sell or pledge or agree otherwise permit to issue, grant, sell or pledge any securities of Cazabecome outstanding, or securities convertible into authorize the creation of, any additional Equity Interests (whether “phantom” or exchangeable otherwise) or exercisable forany additional Rights, including transactions between or otherwise evidencing a right to acquire, securities of Caza; among the MLP Group Entities or (iiiii) redeem, purchase or otherwise acquire certificate any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; existing Partnership Interests;
(ivb) (i) split, combine or reclassify any of its securities; Equity Interests or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for its Equity Interests, (ii) repurchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase, redeem or otherwise acquire any membership, partnership or other Equity Securities or (iii) enter into any Contract with respect to the voting of its Partnership Interests or other Equity Securities;
(c) (i) sell, transfer, lease, or otherwise dispose of, or encumber all or any portion of its assets, business or properties, except for (A) sales, transfers and dispositions of obsolete or worthless equipment, (B) sales, transfers and dispositions of inventory and produced hydrocarbons in the ordinary course of business or (C) sales, transfers, assignments, conveyances, abandonment, allowances to lapse, licenses, sublicenses, covenants not to assert or other disposals of Intellectual Property in the ordinary course of business consistent with past practice, (ii) acquire, by merger or otherwise, or lease any assets or securities or all or any portion of the business or property of any other Person, other than (x) acquisitions of goods and services in the ordinary course of business consistent with past practice and (y) acquisitions pursuant to which the aggregate value exchanged or purchase price paid or payable by any MLP Group Entity would not exceed $2,000,000 in the aggregate, (iii) merge, consolidate or enter into any other business combination transaction with any Person or (iv) convert from any one form of business entity to any other form of business entity;
(d) make or declare dividends or distributions to the Unitholders or holders of Phantom Units (whether in cash, assets, stock or other securities of any MLP Group Entity or of any other Person), other than (i) regular quarterly cash distributions to the Unitholders and holders of Phantom Units declared and made in accordance with and subject to the limitations of Annex VI of the MLP Disclosure Letter and (ii) a one-time cash distribution to the Unitholders and holders of Phantom Units declared in accordance with and subject to the limitation of Annex VI of the MLP Disclosure Letter and made in accordance with the provisions of this Agreement;
(e) amend any MLP Charter Document, the MLP GP LLC Agreement or any similar governing document of any of the MLP Group Entities;
(f) (i) enter into any Contract that would have been an MLP Material Contract if in effect on the date of this Agreement, (ii) amend any Contract in existence on the date hereof that is not a Material Contract on the date hereof if, after giving effect to such amendment, it would be an MLP Material Contract or (iii) become a party to, establish or adopt any collective bargaining, union, labor or similar Contract;
(g) materially modify or amend, or waive or assign any material rights under, or terminate or assign, any MLP Material Contract;
(i) waive, release or assign its rights with respect to any Proceeding in which any of the MLP Group Entities are seeking monetary damages in excess of $2,000,000 or (ii) compromise, settle or agree to settle any Proceeding in which damages are being sought against any of the MLP Group Entities, other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that (A) involve only the payment of monetary damages not in excess of $5,000,000 individually or $10,000,000 in the aggregate and (B) do not involve any imposition of equitable relief on, or any admission of wrongdoing or, in the context of any actual or potential violation of any Criminal Law, any nolo contendere or similar plea by, any MLP Group Entity;
(i) (i) implement or adopt any change in its GAAP accounting principles, practices or methods, other than as may be required by GAAP or SEC rules and regulations or (ii) write up, write down or write off the book value of any assets, except in accordance with GAAP consistently applied;
(j) fail to use reasonable best efforts to maintain, with financially responsible insurance companies, insurance in such amounts and against such risks and losses as is maintained by it on the date of this Agreement;
(k) (i) change in any material respect any of its express or deemed elections relating to Taxes, including elections for any and all Subsidiaries or other investments where it has the capacity to make such binding election, (ii) settle or compromise any material Proceeding relating to Taxes or (iii) change in any material respect any of its methods of reporting income or deductions for federal income Tax purposes from those employed in the preparation of its federal income Tax Return for the most recent taxable year for which a return has been filed, except as may be required by applicable Law;
(l) except as expressly required by the terms of any MLP Benefit Plan as in effect on the date hereof, (i) other than in the ordinary course of business consistent with past practice, increase or accelerate the payment or vesting of the compensation, benefits or rights payable to or accrued for, or to become payable to or accrued for, any current or former employee, officer, individual manager or director of any MLP Group Entity or any of their beneficiaries, (ii) other than in the ordinary course of business consistent with past practice, grant any severance or termination pay to any employee, officer, individual manager or director of any MLP Group Entity, (iii) establish, adopt, enter into, amend or terminate any MLP Benefit Plan, (iv) other than in the ordinary course of business consistent with past practice, grant, pay, award or accelerate the vesting of, or commit to grant, pay, award or accelerate the vesting of, any bonuses or incentive compensation, any equity-based awards or any other compensation, (v) adopt a plan of liquidation fund any rabbi trust or resolutions providing for the liquidationsimilar Contract, dissolution, merger, consolidation or reorganization of Caza; (vi) declareother than in the ordinary course of business consistent with past practice, set aside terminate the employment or pay services of any dividend officer or other distribution employee whose target annual base compensation is greater than $100,000, other than for cause, (vii) forgive any loans of any current or payment former employee, manager, officer, director or consultant of any MLP Group Entity or GP Holdings, (viii) hire any officer, employee, independent contractor or consultant whose target annual base compensation is greater than $200,000 or (ix) enter into or modify or amend any indemnification or similar Contract with any current or former employee, individual manager, officer or director;
(m) (i) (A) incur, assume, guarantee or otherwise become liable, directly, contingently or otherwise, for any (1) Indebtedness under clause (a), (b) or (e) of the definition of Indebtedness (other than any borrowing or draws under existing revolving credit facilities in the ordinary course of business consistent with past practice), (2) Indebtedness under clause (c) of the definition of Indebtedness (other than standby letters of credit for collateral support) or (3) Indebtedness under clause (d) of the definition of Indebtedness, if in excess of $5,000,000 or (B) prepay or repurchase any Indebtedness prior to the stated maturity thereof, (ii) enter into any material lease (whether in cash shares operating or propertycapital), (iii) in respect create any Lien (other than Permitted Liens) on its property or the property of its outstanding Subsidiaries in connection with any pre-existing Indebtedness, new Indebtedness or lease, (iv) make or commit to make any capital expenditures, other than such capital expenditures as are required on an emergency basis or for the safety of individuals, assets or the environment, (v) issue or sell any debt securities without the consent or warrants or other rights to acquire any debt security of the Offerorany MLP Group Entity, which consent may be withheld in the Offeror’s sole and absolute discretion; (vi) enter into any “keep well” or other Contract to maintain any financial statement condition of another Person or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to Contract having the economic effect of any of the foregoing except as otherwise permitted or contemplated by this Agreementforegoing;
(cn) except for transactions disclosed in the Disclosure Letterrestructure, Caza will notreorganize or liquidate all or a material part of any MLP Group Entity’s assets or authorize, and will not permit recommend, propose or announce an intention to adopt a plan of complete or partial dissolution or liquidation;
(o) make any of its subsidiaries loans, advances or capital contributions to, directly or indirectlyinvestments in, do any of the following Person, other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) selltravel, pledge, dispose of relocation expenses and similar expenses or encumber any assets, except advances to its employees in the ordinary course of business; business consistent with past practice and (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made trade credit granted in the ordinary course of businessbusiness consistent with past practice;
(p) enter into any new Contract to sell propylene, make any investment, either by purchase of shares produced hydrocarbons or securities, contributions of capital (other substances other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase business consistent with past practice;
(q) implement or otherwise enter into any property derivative security with respect to hydrocarbon production or assets marketing or enter into any Derivative Transaction;
(r) (i) engage in the production of any chemical, petrochemical or produced hydrocarbon other individual than those produced in the ordinary course of business consistent with past practice or entity; (ii) materially deviate from the operating practices or production schedule of the Facility, including implementing or announcing any plant closing, material reduction in labor force or other material layoff of employees or service providers;
(s) take any action that is intended or would reasonably be expected to result in any of the conditions set forth in Article VII not being satisfied;
(t) convene any meeting, special or otherwise (or any adjournment or postponement thereof), of the Unitholders;
(u) enter into any transactions or Contracts with any Affiliate or other Person that would be required to be disclosed by MLP under Item 404 of Regulation S-K of the SEC;
(v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, conduct the obligation businesses of any other individual MLP Group Entity in a manner that would cause any MLP Group Entity to become an “investment company” subject to registration under the Investment Company Act; or
(w) agree or entity, or make any loans or advances;commit to do anything prohibited by clauses (a) through (v) of this Section 6.3.
Appears in 1 contract
Samples: Merger Agreement (PetroLogistics LP)
Interim Operations. During the period (a) The Company covenants and agrees that, from the date of execution of this Agreement and ending on the earlier of until the Effective Time (unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed)), and the termination of except (x) as otherwise expressly required, contemplated or permitted by this Agreement, except with the prior written consent (y) as set forth in Section 7.1(a) of the OfferorCompany Disclosure Letter or (z) as required by applicable Laws (including any Law issued in response to the COVID-19 (or SARS-CoV-2) virus), acting reasonablythe Company shall, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that shall cause each of its Subsidiaries to, use its reasonable best efforts to conduct its business shall be conducted only in the usual and ordinary course of business consistent with past practicespractice in all material respects and, to the extent consistent therewith, it shall, and it shall cause each of its Subsidiaries to, use all commercially its reasonable best efforts to maintain and preserve its businessbusiness organizations substantially intact and maintain existing relations and goodwill with Governmental Entities, assets customers, suppliers, production companies, distributors, licensees, licensors, creditors, lessors, employees and advantageous business relationships. Caza shall consult associates and others having material business dealings with it and keep available the Offeror in respect services of its ongoing business present employees and affairs agents. Without limiting, and keep in furtherance of, the Offeror apprised foregoing, from the execution of all material developments relating thereto;
this Agreement until the Effective Time, except (b1) Caza as otherwise expressly required, contemplated or permitted by this Agreement, (2) as set forth in Section 7.1(a) of the Company Disclosure Letter or (3) as required by applicable Laws (including any Law issued in response to the COVID-19 (or SARS-CoV-2) virus), the Company shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any and shall cause each of its outstanding securities, except as permitted pursuant Subsidiaries not to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the unless Parent shall otherwise consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, (such consent not to be unreasonably withheld: , conditioned or delayed)):
(i) adopt or propose any change in its certificate of incorporation or bylaws or comparable organizational documents;
(ii) merge or consolidate with any other Person;
(iii) issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any Company Shares or other capital stock or other securities of the Company or encumber such Subsidiary or securities convertible or exchangeable into or exercisable for Company Shares or other capital stock or securities of the Company or such Subsidiary, other than (x) issuances of Company Shares upon the exercise, vesting or settlement of Company Equity Awards and/or the Company Warrant outstanding as of the date hereof in accordance with their terms as in effect on the date hereof and (y) grants of Company Equity Awards in respect of up to 11,000,000 Company Shares, in the aggregate;
(iv) declare, set aside, make or pay any assetsdividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of the Company Shares or securities of such Subsidiary;
(v) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire, directly or indirectly, any Parent Shares or securities convertible or exchangeable into or exercisable for Company Shares (other than the withholding of shares to satisfy withholding Tax obligations or the exercise price in connection with the exercise, vesting or settlement of outstanding Company Equity Awards and/or the Company Warrant) or securities of such Subsidiary;
(vi) incur any Indebtedness with an aggregate principal amount in excess of $40,000,000 or guarantee the Indebtedness of any other Person, or make any loans, capital contributions or advances to any Person other than to any wholly owned Subsidiary;
(vii) amend, modify, terminate or cancel a material insurance policy covering the Company or any of its Subsidiaries in effect as of the date hereof;
(viii) make any material changes in financial accounting methods, principles or practices except as may be required by GAAP or by any Governmental Entity or quasi-governmental authority (including the Financial Accounting Standards Board or any similar organization);
(ix) (A) make (other than consistent with past practice), change or revoke any material Tax election, (B) file any amended Tax Return with respect to any material Tax, (C) adopt (other than consistent with past practice) or change any method of Tax accounting or Tax accounting period, or (D) enter into any closing agreement relating to any material Tax; (x) other than Transaction Litigation which is governed by Section 7.13(b), settle or compromise any pending or threatened Proceeding involving the Company or any of its Subsidiaries, other than (A) for an amount not to exceed $10,000,000 in the aggregate and (B) that do not impose any material restrictions on the operations or businesses of the Company or any of its Subsidiaries, or any equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries; or
(xi) agree, commit, arrange, authorize, resolve or enter into any understanding to do any of the foregoing.
(b) Parent covenants and agrees that, from the execution of this Agreement until the Effective Time (unless the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed)), and except (x) as otherwise expressly required, contemplated or permitted by this Agreement, (y) as set forth in Section 7.1(b) of the Parent Disclosure Letter or (z) as required by applicable Laws (including any Law issued in response to the COVID-19 (or SARS-CoV-2) virus), Parent shall, and shall cause each of its Subsidiaries to, use its and their reasonable best efforts to conduct its business in the ordinary course of business; business consistent with past practice in all material respects and, to the extent consistent therewith, Parent shall, and shall cause each of its Subsidiaries to, use its and their reasonable best efforts to preserve its business organizations substantially intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, production companies, distributors, licensees, licensors, creditors, lessors, employees and business associates and others having material business dealings with it and keep available the services of its present employees and agents. Without limiting, and in furtherance of, the foregoing, from the execution of this Agreement until the Effective Time, except (1) as otherwise expressly required, contemplated or permitted by this Agreement, (2) as set forth in Section 7.1(b) of the Parent Disclosure Letter or (3) as required by applicable Laws (including any Law issued in response to the COVID-19 (or SARS-CoV-2) virus), Parent shall not, and shall cause each of its Subsidiaries not to (unless the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed)):
(i) adopt or propose any change in its certificate of incorporation or bylaws or comparable organizational documents;
(ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue consolidate with any other Person;
(iii) issue, corporationsell, partnership pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any Parent Shares or other business organization whatsoever; capital stock or other securities of Parent or such Subsidiary or securities convertible or exchangeable into or exercisable for Parent Shares or other capital stock or securities of Parent or such Subsidiary, other than issuances of Parent Shares upon the exercise, vesting or settlement of Parent Equity Awards outstanding as of the date hereof in accordance with their terms as in effect on the date hereof;
(iv) acquire (by mergerdeclare, amalgamationset aside, consolidation make or acquisition of shares or assets) pay any corporation, partnership dividend or other business organization distribution, payable in cash, stock, property or division thereofotherwise, orwith respect to any of the Parent Shares or securities of such Subsidiary;
(v) reclassify, except split, combine, subdivide or redeem, purchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire, directly or indirectly, any Parent Shares or securities convertible or exchangeable into or exercisable for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital Parent Shares (other than the withholding of shares to subsidiaries)satisfy withholding Tax obligations or the exercise price in connection with the exercise, property transfer, or, except vesting or settlement of outstanding Parent Equity Awards) or securities of such Subsidiary;
(vi) incur any Indebtedness with an aggregate principal amount in excess of $40,000,000 or guarantee the ordinary course of business, purchase any property or assets Indebtedness of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entityPerson, or make any loans loans, capital contributions or advancesadvances to any Person other than to any wholly owned Subsidiary;
(vii) amend, modify, terminate or cancel a material insurance policy covering Parent or any of its Subsidiaries in effect as of the date hereof;
(viii) make any material changes in financial accounting methods, principles or practices except as may be required by GAAP or by any Governmental Entity or quasi-governmental authority (including the Financial Accounting Standards Board or any similar organization);
(ix) (A) make (other than consistent with past practice), change or revoke any material Tax election, (B) file any amended Tax Return with respect to any material Tax, (C) adopt (other than consistent with past practice) or change any method of Tax accounting or Tax accounting period, or (D) enter into any closing agreement relating to any material Tax;
(x) other than Transaction Litigation which is governed by Section 7.13(b), settle or compromise any pending or threatened proceeding involving Parent or any of its Subsidiaries, other than (A) for an amount not to exceed $10,000,000 in the aggregate and (B) that do not impose any material restrictions on the operations or businesses of Parent or any of its Subsidiaries, or any equitable relief on, or the admission of wrongdoing by, Parent or any of its Subsidiaries; or
(xi) agree, commit, arrange, authorize, resolve or enter into any understanding to do any of the foregoing.
(c) Nothing contained in this Agreement is intended to give Parent, directly or indirectly, the right to control or direct the operations of the Company or any of its Subsidiaries prior to the Effective Time, and nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct the operations of Parent or any of its Subsidiaries.
Appears in 1 contract
Interim Operations. During the period from the date of execution of this Agreement and ending on the earlier of Prior to the Effective Time and Time, unless Parent has otherwise consented in writing thereto, the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any of the followingCompany:
(i) amend shall, and shall cause each of its constating documents; Subsidiaries and each of the Investment Companies to, conduct its operations according to their usual, regular and ordinary course in substantially the same manner as heretofore conducted;
(ii) issue shall use its reasonable best efforts, and shall cause each of its Material Subsidiaries and each of the Investment Companies to use its reasonable best efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause its Material Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall, and shall cause each of the Investment Companies to, promptly notify Parent of (x) any Company Material Adverse Effect, (y) any litigation matter relating to an amount in excess of $500,000, governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), or (z) any material breach of any representation or warranty contained herein;
(v) shall, upon receiving any written notice from any Taxing authority proposing any adjustment to any Tax relating to the Company or any of its Subsidiaries, give prompt written notice thereof to Parent, which notice shall describe in detail each proposed adjustment;
(vi) shall promptly deliver to Parent true and correct copies of any report, statement or schedule filed with the SEC subsequent to the date of this Agreement;
(vii) shall not, and shall not permit any of its Subsidiaries to, authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than on exercise or surrender of currently outstanding Caza Optionsthe Merger), grantany acquisition of assets or securities other than in the ordinary course of business, sell any disposition of assets or pledge securities other than in the ordinary course of business or agree to issueany release or relinquishment of any material contract rights other than in the ordinary course of business;
(viii) shall not, grantand shall not permit any of its Subsidiaries to, sell or pledge issue any securities shares of Caza, its capital stock or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any for shares of its outstanding securitiescapital stock, except as permitted upon exercise of options outstanding on the date of this Agreement under the Company Stock Option Plans or granted pursuant to the terms thereof of the Stock Option Agreement to purchase shares of Company Common Stock, or as permitted in accordance with or contemplated by this Agreement; (iv) effect any stock split, combine reverse stock split, stock dividend, subdivision, reclassification, combination, exchange, or reclassify other similar transaction with respect to any shares of its capital stock or other ownership interests, or otherwise change its capitalization;
(ix) shall not, and shall not permit any of its securities; Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or its Subsidiaries;
(vx) shall not, and shall not permit any of its Subsidiaries to, take or fail to take any actions which would, or would be reasonably likely to, prevent the Merger from qualifying as a reorganization with the meaning of Section 368(a) of the Code;
(xi) except pursuant to (i) applicable law, (ii) the terms of pre-existing contractual arrangements or policies or (iii) the ordinary course of business consistent with past practice, shall not, and shall not permit any of its Subsidiaries to, amend the terms of any Company Plan, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt a plan any new employee compensation or benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or change in any respect any vesting schedule with respect to any Company Plan or grant or award thereunder, or grant any salary increases to any employee of liquidation the Company or resolutions providing any Subsidiary;
(xii) except in the ordinary course consistent with past practice, shall not, and shall not permit any of its Subsidiaries to, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the liquidationobligations of any other individual, dissolution32 37 corporation or other entity, merger(y) make any loans or advances to any other person or (z) subject any of its property or assets, consolidation or reorganization permit any of Caza; its property or assets to be subjected, to any lien, claim or encumbrance of any kind;
(vixiii) shall not, and shall not permit any of its Subsidiaries to, (x) change any practice with respect to Taxes, (y) make, revoke or change any election with respect to Taxes or (z) settle or compromise any Tax liability;
(xiv) shall not (y) declare, set aside or pay any dividend or make any other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any shares of the foregoing except as its capital stock (other than regular quarterly cash dividends payable on Company Common Stock in an amount not to exceed $0.06 per share) or other ownership interests or (z) redeem, purchase or otherwise permitted acquire any shares of its capital stock, or contemplated by this Agreementmake any commitment for any such action;
(cxv) except for transactions disclosed in the Disclosure Letter, Caza will shall not, and will shall not permit any of its subsidiaries Subsidiaries to, directly agree, in writing or indirectlyotherwise, do to take any of the following other than as contemplated by this Agreement foregoing actions or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber take any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures action which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, would make any investment, either by purchase of shares representation or securities, contributions of capital (other than to subsidiaries), property transfer, or, except warranty in the ordinary course of business, purchase any property Article 3 hereof untrue or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;incorrect.
Appears in 1 contract
Samples: Merger Agreement (Mony Group Inc)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement and ending on the earlier of prior to the Effective Time and the termination of this Agreement(unless Parent shall otherwise approve in writing in advance (which approval shall not be unreasonably withheld, except with the prior written consent of the Offeror, acting reasonablydelayed or conditioned)), and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that Agreement or as required by a Governmental Entity or applicable Law, its business and the business of its Subsidiaries shall be conducted only in all material respects in the usual Ordinary Course and, to the extent consistent therewith, it and ordinary course of its Subsidiaries shall (i) preserve their business consistent with past practices, organizations in good standing pursuant to applicable Law and it shall (ii) use all their respective commercially reasonable efforts to maintain existing relations and preserve its businessgoodwill with Governmental Entities, assets customers, suppliers, distributors, creditors, lessors, employees and advantageous business relationships. Caza shall consult with associates and keep available the Offeror in respect services of its ongoing business and affairs its Subsidiaries’ respective present officers, employees and keep agents, except as otherwise expressly required by this Agreement or as required by a Governmental Entity or applicable Law, provided that no action by the Offeror apprised Company with respect to matters permitted by any provision of all material developments relating thereto;clauses (i)-(xxii) of Section 7.1(b) below shall be deemed a breach of the obligations under this sentence unless such action would constitute a breach of such other provision.
(b) Caza Without limiting the generality of, and in furtherance of, the foregoing, from the date of this Agreement until the Effective Time, except as otherwise expressly (A) contemplated by this Agreement, (B) required by a Governmental Entity or applicable Law, (C) approved in writing in advance (which approval shall notnot be unreasonably withheld, directly delayed or indirectly, do conditioned) by Parent or permit to occur any (D) set forth in Section 7.1(b) of the followingCompany Disclosure Letter, the Company shall not and shall not permit its Subsidiaries to:
(i) amend its constating documents; adopt or propose any change in (x) the Company’s Organizational Documents or (y) any Subsidiary’s Organizational Documents;
(ii) issue (merge or consolidate itself or any of its Subsidiaries with any other than on exercise or surrender of currently outstanding Caza Options)Person, grant, sell or pledge or agree to issue, grant, sell or pledge except for any securities of Cazasuch transactions among its wholly owned Subsidiaries, or securities convertible into restructure, reorganize or exchangeable completely or exercisable for, partially liquidate or otherwise evidencing a right to acquireenter into any agreements or arrangements imposing material changes or restrictions on its assets, securities of Caza; operations or businesses;
(iii) redeem, purchase or otherwise (A) acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated (1) (by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization acquisition of Caza; stock or assets) any other Person or (2) to the extent in excess of $5,000,000 in the aggregate, any material equity in any other Person therein or (B) enter into any joint venture, legal partnership or similar arrangement (other than commercial agreements with partners in the Ordinary Course that do not involve the formation of an entity with any third Person or require equity investing);
(iv) except as otherwise permitted under clause (xvii) below and except for issuances under the ESPP authorized under Section 3.5(c), issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or Encumbrance of, or otherwise enter into or amend any Contract or understanding with respect to the voting of, any shares of its capital stock or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or Company Equity Awards or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities (other than the issuance of shares (A) by its wholly owned Subsidiary to it or another of its wholly owned Subsidiaries, (B) in respect of Company Warrants and Company Equity Awards, in each case outstanding as of the date hereof and issued in accordance with their terms in effect as of the date hereof and, as applicable, the Stock Plan or (C) under the ESPP);
(v) create or incur any Encumbrance (other than a Permitted Encumbrance or as otherwise permitted by Section 7.1(b)(x));
(vi) make any loans, advances, guarantees or capital contributions to or investments in any Person (other than to or from the Company and any of its wholly owned Subsidiaries) in excess of $250,000 in the aggregate;
(vii) make any loans or advances to, guarantees for the benefit of, or enter into any other material transaction with any Company Employee or Affiliates other than advances for business, travel-related, relocation or other similar expenses in accordance with currently existing Company policy;
(viii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock or other equity or voting interest (except for dividends paid by any direct or indirect wholly owned Subsidiary to it or to any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the foregoing except as otherwise permitted or contemplated by this Agreementvoting of its capital stock;
(cix) except for transactions disclosed in the Disclosure Letterreclassify, Caza will notsplit, and will not permit any of its subsidiaries tocombine, subdivide or redeem, purchase or otherwise acquire, or offer to redeem, repurchase or otherwise acquire, directly or indirectly, do any of the following its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock, other than the withholding of shares of Company Common Stock to satisfy the exercise price or withholding Tax obligations upon the exercise, vesting or settlement of outstanding Company Equity Awards in accordance with their terms and, as contemplated applicable, the Stock Plan;
(x) unless otherwise permitted by Section 7.1(b)(xvii), incur any Indebtedness (including the issuance of any debt securities, warrants or other rights to acquire any debt security), except for (A) trade payables incurred in the Ordinary Course and intercompany loans or advances between or among the Company and/or its direct or indirect wholly-owned Subsidiaries, (B) other Indebtedness not to exceed $750,000 in the aggregate or (C) guarantees of Indebtedness of wholly owned Subsidiaries otherwise incurred in compliance with this Section 7.1;
(xi) except as set forth in the Company’s capital budget, make or authorize any capital expenditures in excess of $1,000,000 in the aggregate during any fiscal quarter (it being understood that any portion of the capital expenditures budget for any fiscal quarter and such $1,000,000 in excess thereof not expended in such fiscal quarter, beginning with the first quarter of the fiscal year ended March 31, 2021, may be carried forward and, together with any amount otherwise permissible pursuant to this paragraph (xi), expended in any future fiscal quarter; provided that any excess amount not expended in the final quarter of a fiscal year will not be carried forward into the next fiscal year);
(xii) other than in the Ordinary Course, enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement or amend, modify supplement, waive, terminate, assign, convey, Encumber or otherwise transfer, in whole or in part, rights or interest pursuant to commitments entered or in any Material Contract, other than (A) expirations of any such Contract in the Ordinary Course in accordance with the terms of such Contract, or (B) non-exclusive licenses, covenants not to xxx, releases, waivers or other rights under Intellectual Property Rights owned by the Company or any of its Subsidiaries, in each case, granted in the Ordinary Course;
(xiii) settle, release, waive or compromise any Proceedings except solely for monetary payments of no more than $750,000 individually or $1,500,000 in the aggregate, net of applicable insurance payments, recoveries or proceeds, or on a basis that would (A) prevent or materially delay consummation of the Merger or the Transactions, or (B) result in the imposition of any term or condition that would materially restrict the future activity or conduct of the Company or its Subsidiaries or a finding or admission of a criminal violation of Law;
(xiv) make any changes (other than di minimis changes) with respect to accounting policies or procedures, except as required by GAAP or applicable Law;
(xv) (A) make, change or revoke any income or other material Tax election, (B) adopt or change any Tax accounting method, (C) file any amended Tax Return, (D) enter into any closing agreement with respect to any Taxes, (E) settle any material Tax claim, audit, assessment or dispute, (F) surrender any right to claim a refund of a material amount of Taxes, (G) consent to any extension or waiver of any limitation period with respect to any material Tax claim or assessment, (H) enter into any Tax sharing or similar agreement or arrangement, (I) fail to pay any material Tax that becomes due and payable or (J) incur any Taxes outside of the Ordinary Course;
(xvi) transfer, sell, lease, license, divest, cancel, mortgage, pledge, surrender, encumber, abandon or allow to lapse or expire or otherwise dispose of any assets (tangible or intangible), rights, properties, product lines or businesses, in whole or in part, material to it or any of its Subsidiaries, including capital stock of any of its Subsidiaries, except for (A) sales of obsolete assets in the Ordinary Course, (B) sales, leases or other dispositions of assets (not including services) with a Fair Value not in excess of $5,000,000 in the aggregate other than pursuant to Material Contracts in effect prior to the date of this Agreement and disclosed (C) non-exclusive licenses entered into in the Ordinary Course and (D) Encumbrances securing Indebtedness permitted under this Section 7.1(b) and (E) Permitted Encumbrances;
(xvii) except as required pursuant to the terms of any Company Benefit Plan in effect as of the date of this Agreement or as otherwise required by applicable Law, (A) grant or provide any severance or termination payments or benefits to any Company Employee or other party service provider, (B) increase the compensation or benefits payable to any Company Employee or other service provider, except for annual merit-based increases in writing base salary or base wages in the Ordinary Course for Company Employees or other service providers who are not directors or Executive Officers and whose annual base compensation is less than $250,000 (with no such increase to exceed three (3) percent (3%)), (C) establish, adopt, enter into, amend or terminate any material Company Benefit Plan or other material benefit or compensation plan, program, policy, agreement or arrangement that would be a Company Benefit Plan if in effect on the date hereof, (D) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan other than vesting acceleration of all Company Options and Company RSUs in the Merger as contemplated by Section 3.5(b), (E) grant any new awards, or amend or modify the terms of any outstanding awards (including, without limitation, any Company Equity Awards), (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan that is required by applicable Law to be funded or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, (G) forgive any loans, issue any loans or advance any loans to any current or former Company Employees, (H) hire or engage any employee or engage any independent contractor (who is a natural person) with an annual base salary or wage rate or consulting fees in excess of $275,000 or (I) terminate the employment or engagement of any Company Employee or other service provider whose annual base compensation exceeds $275,000 other than for cause;
(xviii) recognize any union, works council or other labor organization as the representative of any of the employees of the Company or any of the Subsidiaries, or enter into, modify, or terminate any Company Labor Agreement, in each case, except as required by applicable Law;
(xix) implement or announce any employee layoffs or location closings, that would implicate the WARN Act;
(xx) enter into any Contract which contains a change in control or similar provision that would be triggered in connection with this Agreement or the Merger;
(xxi) other than in the Ordinary Course, amend or modify in any material respect, or extent, renew or terminate any lease, sublease, license or other agreement for the use or occupancy of any real property, or enter into any new lease, sublease, license or other agreement for the use or occupancy of any real property;
(xxii) maintain insurance at less than current levels or otherwise disclosed to the other partyin a manner inconsistent with past practice in any material respects;
(xxiii) engage in any transaction with, without the prior consent or enter into any agreement, arrangement or understanding with, any Affiliate of the Company or other party, such consent not Person covered by Item 404 of Regulation S-K promulgated by the SEC that would be required to be unreasonably withheld: disclosed pursuant to Item 404; or
(ixxiv) sellagree, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend authorize or commit to expend do any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 1 contract
Samples: Merger Agreement (Majesco)
Interim Operations. During the period from (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date of execution of this Agreement hereof and ending on until the earlier of the Effective Time and the termination of this AgreementAgreement pursuant to its terms or the Effective Time (unless Buyer shall otherwise approve, such approval not to be unreasonably withheld if the request relates to any matters other than those described in clauses (i), (iii), (iv), (x), (xi), or (xv) below), except with the prior written consent of the Offeror, acting reasonably, as otherwise expressly contemplated by this Agreement and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants applicable Laws, the business of the Company and agrees that its business Subsidiaries shall be conducted only in the usual and ordinary course of business consistent with past practicespractices and, to the extent consistent therewith, it and it its Subsidiaries shall use all their respective commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, material customers, suppliers, distributors, key employees and business associates and keep available the services of its and its Subsidiaries’ present key employees, to maintain all of its material operating assets in their current condition (normal wear and tear excepted) and to maintain and preserve its business, assets business organization and advantageous business relationshipsits material rights and franchises. Caza shall consult with Without limiting the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any generality of the followingforegoing and in furtherance thereof, from the date of this Agreement until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, except (1) as otherwise expressly required by this Agreement, (2) upon at least twenty-four hours prior written notice delivered to Buyer (if feasible), as may be required by applicable Laws (including the rules of NASDAQ), (3) as Buyer may approve, such approval not to be unreasonably withheld if the request relates to any matters other than those matters described in clauses (i), (iii), (iv), (x), (xi), or (xv) below, or (4) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation complete or resolutions providing for the partial liquidation, dissolution, merger, consolidation consolidation, restructuring, recapitalization or other reorganization of Cazasuch entity;
(ii) enter into any new line of business outside its existing business segments (other than as permitted by clause (vi));
(iii) (A) amend its articles of incorporation, by-laws or other applicable governing instruments; (viB) split, combine, subdivide or reclassify its outstanding shares of capital stock; (C) declare, set aside or pay any dividend or other distribution payable in cash, stock or payment (whether in cash shares or property) property in respect of its outstanding securities without the consent of the Offerorany capital stock; (D) enter into, which consent may be withheld in the Offeror’s sole and absolute discretionamend or modify any shareholder rights agreement, rights plan, “poison pill” or other similar agreement or instrument; or (E) 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 pursuant to the forfeiture of Company Options, Company Restricted Shares or Common Stock Units or the acquisition by the Company of Company Shares in settlement of the exercise price of a Company Option or Tax withholding obligations of holders of Company Options, Company Restricted Shares or Common Stock Units);
(iv) merge or consolidate itself or any of its Subsidiaries with, acquire all or substantially all of the assets of, or acquire all or a substantial portion of any equity or voting interests of any other Person, except for any such transactions among its wholly-owned Subsidiaries, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses (other than as permitted by clause (vi));
(v) form any Subsidiary of the Company or any of its Subsidiaries;
(vi) acquire any business, whether by merger, consolidation, purchase of property or assets or otherwise (valuing any non-cash consideration at its fair market value as of the date of the agreement for such acquisition); provided that neither the Company nor any of its Subsidiaries shall make any acquisition that would, or would reasonably be expected to prevent, delay or impair the Company’s ability to consummate the transactions contemplated by this Agreement; (vii) incur, prepay, repurchase, assume or materially modify any indebtedness for borrowed money or guarantee any indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any of its debt securities or of any of its Subsidiaries, except for (A) indebtedness for borrowed money (x) interest rate swaps on customary commercial terms consistent with past practice and in compliance with its risk management policies in effect on the date of this Agreement or relating to acquisitions by the Company, collectively in an amount not to exceed $10,000,000 in the aggregate, or (y) in replacement of existing indebtedness for borrowed money, or (B) guarantees incurred in compliance with this Section 6.1 by it of indebtedness of its wholly-owned Subsidiaries;
(viii) make or commit to any capital expenditures materially in excess of the aggregate amount reflected in the Company’s capital expenditure budget for the period in which such capital expenditures are made;
(ix) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, Intellectual Property, product lines or businesses or of its Subsidiaries, including capital stock of any of its Subsidiaries, other than pursuant to Contracts in effect as of the date of this Agreement or sales or licenses in the ordinary course of business;
(x) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize or agree to the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock, or any other equity or voting interest of the Company or of any its Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary to it or another of its wholly-owned Subsidiaries), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock, or such convertible or exchangeable securities, other than in connection with the exercise of the Top-Up Option or any Company Options issued as of the date hereof;
(xi) make any change with respect to accounting policies or procedures, except as required by changes in GAAP or by Law;
(xii) except as required by Law, (A) make, revoke or change any material Tax election or take any material position on any material Tax Return filed on or after the date of this Agreement or adopt any material method therefor that is inconsistent with elections made, positions taken or methods used in preparing or filing similar Tax Returns in prior periods or (B) settle or resolve any material Tax controversy;
(xiii) make any material loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company);
(xiv) enter into any non-competition Contract or modify other Contract that limits in any contractmaterial respect either the type of business in which the Company or its Subsidiaries (or, agreementafter the Effective Time, commitment Buyer or arrangement its Affiliates) may engage or the manner or locations in which any of them may so engage in any business;
(xv) except as required pursuant to Contracts in effect as of the date of this Agreement, or as otherwise required by this Agreement or applicable Law: (A) grant or provide any severance or termination payments or benefits to any of its directors, officers or employees; (B) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards, except as provided in Section 6.1(a)(x) above, to any of its directors, officers or employees (other than increases in compensation in connections with new-hires and promotions, compensation adjustments in the ordinary course of business consistent with the normal annual review cycle of the Company and payment of bonuses in the ordinary course of business and consistent with past practices); provided however, the Company may establish a cash retention program comprised of up to $375,000 in aggregate payments to employees of the Company who remain employed by the Company for at least 12 months following the Closing Date, provided that such amount will increase by $250,000 to a total of $625,000 in aggregate payments if the Offer Closing has not occurred within 90 days from the date hereof, and thereafter Buyer will reasonably consider an additional increase to such amount as reasonably requested by the Company; (C) establish, adopt, amend or terminate any Company Compensation and Benefit Plan or amend the terms of any outstanding equity-based awards; (D) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Compensation and Benefit Plans, to the extent not already provided in any such Company Compensation and Benefit Plan; (E) change any actuarial or other assumptions used to calculate funding obligations with respect to any of Company Compensation and Benefit Plan or change the foregoing manner in which contributions to such plans are made or the basis on which such contributions are determined, except as otherwise permitted may be required by GAAP; or contemplated by this Agreement(F) forgive any loans to any of its or of any of its Subsidiaries’ directors, officers or employees;
(cxvi) except for transactions disclosed in adopt or enter into any collective bargaining agreement, works council agreement, or other labor union Contract applicable to the Disclosure Letter, Caza will not, and will not permit employees of the Company or any of its subsidiaries to, directly Subsidiaries;
(xvii) take any action or indirectly, do omit to take any action that would reasonably be expected to result in any of the following conditions of the Offer set forth on Exhibit A or to the Merger set forth in Article VII not being satisfied or intended to prevent, delay or materially impair the ability of the Company to consummate or otherwise impede, interfere or be inconsistent with the Offer, the Merger or any transactions contemplated thereby;
(xviii) settle any litigation in any forum or any dispute, or any administrative or other than as proceedings before or threatened to be brought before a Governmental Entity, including but not limited to any claims of shareholders and any shareholder litigation relating to this Agreement or any transaction contemplated by this Agreement or otherwise, other than settlements solely for monetary compensation and/or the provision of services and/or products by the Company with an aggregate value of less than $500,000;
(xix) disclose any confidential or proprietary information of the Company or any of its Subsidiaries other than pursuant to commitments entered into prior a confidentiality agreement restricting the right of the recipient thereof to use and disclose such confidential or proprietary information;
(xx) fail to keep in force any material insurance policy or replacement or revised provisions providing insurance coverage with respect to the date of this Agreement assets, operations and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent activities of the other party, such consent not to be unreasonably withheld: Company and its Subsidiaries as are currently in effect;
(ixxi) sell, pledge, dispose of or encumber any assets, except in the ordinary course of businessbusiness consistent with past practice, (A) enter into any Contract that would constitute a Material Contract, or modify, amend (in the case of modifications or amendments, in a manner that is, taken as a whole, adverse in to the Company and its Subsidiaries) or terminate any Material Contract, or (B) waive, release or assign any material rights or claims under any Material Contract;
(xxii) convene any annual or special meeting (or any adjournment thereof) of the shareholders of the Company other than the Shareholders Meeting (if such a meeting is required by this Agreement and applicable Law); or
(xxiii) agree, authorize or commit to do any of the foregoing.
(b) Within ten days of the end of each month after the date of this Agreement, the Company covenants and agrees to provide Buyer with written notice of (i) any indebtedness for borrowed money incurred, prepaid, repurchased, assumed, materially modified or guaranteed in compliance with Section 6.1(a)(vii) during the prior month, (ii) expend or commit to expend any amounts in respect of capital expensesaction taken under Section 6.1(a)(xii) during the prior month because required by Law, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganizeany material loans, amalgamateadvances or capital contributions to or investments in the Company or any Subsidiary permitted by Section 6.1(a)(xiii) during the prior month, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire any action taken during the prior month permitted under Section 6.1(a)(xv) because it was required by Contracts in effect as of the date of the Agreement or Law, (by merger, amalgamation, consolidation or acquisition of shares or assetsv) any corporationincreases in compensation during the prior month permitted under Section 6.1(a)(xv)(B), partnership or other business organization or division thereof(vi) the name and title of any employee receiving a retention payment during the prior month permitted under Section 6.1(a)(xv)(B) and the amount of such payment, or(vii) any settlement of litigation during the prior month permitted under Section 6.1(a)(xviii), except for investments in securities made (viii) any action taken during the prior month which is permitted under Section 6.1(a)(xxi) because it was in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital business and (other than to subsidiaries), property transfer, or, except in ix) all new employees hired and promotions during the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;prior month.
Appears in 1 contract
Samples: Merger Agreement (NCR Corp)
Interim Operations. During the period from (a) The Company and STI each covenants and agrees that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and (except for subsection (iii) below which will continue after the termination of this AgreementEffective Time) (unless STI or the Company, except with as the prior written consent of the Offerorcase may be, acting reasonablyshall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that Agreement or in its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly respective Disclosure Letter or indirectly, do or permit to occur any of the following:as required by applicable Law):
(i) amend the business of it and its constating documents; Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(ii) issue it shall not (other than on exercise A) amend its certificate of incorporation or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Cazaby- laws; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (ivB) split, combine combine, subdivide or reclassify any its outstanding shares of its securitiescapital stock; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (viC) declare, set aside or pay any dividend payable in cash, stock or other distribution or payment (whether in cash shares or property) property in respect of its outstanding securities without the consent of the Offerorany capital stock, which consent may be withheld or (D) repurchase, redeem or otherwise acquire, except in the Offeror’s sole and absolute discretion; case of STI, in connection with the redemption of outstanding STI Redeemable Warrants or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries toSubsidiaries to purchase or otherwise acquire, directly any shares of its capital stock or indirectlyany securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(iii) neither it nor any of its Subsidiaries shall knowingly take or fail to take any action if the result of such taking or failure would be to (A) prevent the Merger from qualifying for "pooling of interests" accounting treatment or as a "reorganization" within the meaning of Section 368(a) of the Code or (B) cause any of its representations and warranties herein to become untrue in any material respect;
(iv) neither it nor any of its Subsidiaries will authorize, or enter into an agreement to do any of the following other than as contemplated foregoing; and
(v) each shall cause its respective Affiliates not to knowingly take or fail to take any action which it has agreed to do, or not do, herein.
(b) STI and the Company agree that any written approval obtained under this Section 6.1 may be relied upon by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing if signed by the Chief Executive Officer or otherwise disclosed to the other party, without the prior consent another executive officer of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;.
Appears in 1 contract
Interim Operations. During (a) Except as required by applicable Law or as expressly provided by this Agreement, the period Company covenants and agrees as to itself and its Subsidiaries that, after the date of this Agreement and prior to the Effective Time, the business of it and its Subsidiaries shall be conducted in all material respects in the ordinary and usual course and it and its Subsidiaries shall use their respective commercially reasonable efforts to preserve the material components of their business organizations intact and maintain existing relations and goodwill with Governmental Entities, material customers, material suppliers, licensors, licensees, distributors, creditors and lessors, key employees and independent contractors, and material service providers, agents and business associates and keep available the services of its and its Subsidiaries’ present officers and key employees; provided, however, that the Company and its Subsidiaries shall be under no obligation to and shall not, without Parent’s prior written consent, put in place any new retention programs or include additional personnel in any existing retention programs. Without limiting the generality of the immediately preceding sentence, from the date of execution of this Agreement and ending on the earlier of until the Effective Time and the termination of Time, except (A) as otherwise expressly required by this Agreement, except (B) with the prior written consent of Parent or (C) as set forth in Section 6.1 of the OfferorCompany Disclosure Schedule, acting reasonably, the Company will not and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreementwill not permit its Subsidiaries to:
(ai) Caza covenants adopt or propose any change or amendment (whether by merger, consolidation or otherwise) to its certificate of incorporation or bylaws or other applicable governing instruments of the Company and agrees its Subsidiaries;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions solely among wholly owned Subsidiaries of the Company not in violation of any instrument binding on the Company or any of its Subsidiaries and that its business shall would not reasonably be conducted only expected to result in a material increase in the usual net Tax liability of the Company and its Subsidiaries, taken as a whole;
(iii) acquire, directly or indirectly, whether by purchase, merger, consolidation or acquisition of stock or assets or otherwise, any assets, securities, properties, interests, or businesses or make any investment (whether by purchase of stock or securities, contributions to capital, loans to, or property transfers), in each case, other than (A) acquisitions of raw materials, supplies, equipment, inventory, third party Software and capital in the ordinary course of business consistent with past practices, practice (it being understood and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with agreed that the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised acquisition of all material developments relating theretoor substantially all of the assets of any Person is not in the ordinary course of business), or (B) acquisitions with a value or purchase price (including the value of assumed liabilities) not in excess of $100,000 in any transaction or related series of transactions or $300,000 in the aggregate, or as required by the terms of Contracts as in effect as of the date of this Agreement that are listed in Section 6.1(a)(iii) of the Company Disclosure Schedule;
(biv) Caza shall notissue, directly sell, pledge, dispose of, grant, transfer, encumber, or indirectlyauthorize the issuance, do sale, pledge, disposition, grant, transfer, lease, license, guarantee or permit to occur encumbrance of, any (A) shares of capital stock of the Company or any of the following:
(i) amend its constating documents; (ii) issue Subsidiaries (other than on exercise or surrender of currently outstanding Caza Options)(1) the issuance, sale, pledge, disposition, grant, sell transfer, lease, license, guaranty or pledge encumbrance of shares by a wholly owned Subsidiary of the Company to the Company or agree another wholly owned Subsidiary or (2) the issuance or transfer of Shares pursuant to issueawards outstanding as of the date of this Agreement under, grantand as required by the terms of the Stock Plans as in effect as of the date of this Agreement), sell or pledge any securities of Caza, or (B) securities convertible into or exercisable, exchangeable or exercisable forredeemable for any shares of such capital stock, any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible, exercisable, exchangeable or redeemable securities, or otherwise evidencing a right to acquire, securities of Caza; (iiiC) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; Voting Debt;
(v) adopt a plan make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of liquidation the Company) in excess of $100,000 in any transaction or resolutions providing for series of related transactions or $200,000 in the liquidation, dissolution, merger, consolidation or reorganization of Caza; aggregate;
(vi) amend, supplement, replace, refinance, terminate or otherwise modify that certain Amended and Restated Credit Agreement dated as of December 6, 2012, by and among the Company, Bank of America, N.A., as administrative agent, and the lenders named therein (as amended on June 26, 2013 and July 3, 2014 and as such agreement may be further amended, amended and restated, supplemented, extended, refinanced, renewed, replaced or otherwise modified from time to time);
(vii) except with respect to the regular quarterly dividend of $0.13 per share payable on October 15, 2014, declare, authorize, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock (except for dividends paid by any Subsidiary of the foregoing except as otherwise permitted Company to the Company or contemplated by this Agreementto a wholly owned Subsidiary of the Company) or enter into any Contract with respect to the voting of its capital stock;
(cviii) except for transactions disclosed in the Disclosure Letteradjust, Caza will notreclassify, and will not permit any of its subsidiaries tosplit, combine or subdivide, redeem, purchase or otherwise acquire, directly or indirectly, do any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(ix) incur, alter, amend or modify any indebtedness or guarantee indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the following Company or any of its Subsidiaries, except for the incurrence of indebtedness for borrowed money incurred in the ordinary course of business consistent with past practice not to exceed $200,000 in the aggregate;
(x) make or authorize any capital expenditures materially in excess of the amount reflected in the Company’s capital expenditure budget attached to Section 6.1(a)(x) of the Company Disclosure Schedule;
(xi) make any material changes with respect to accounting policies or procedures, except as required by changes in applicable GAAP;
(xii) subject to Section 6.11, release, assign, compromise, discharge, waive, settle or satisfy any Action (including any Action relating to this Agreement, the Offer or the Merger) or other rights, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) for an amount not covered by insurance in excess of $100,000 individually or $200,000 in the aggregate or providing for any relief other than as contemplated by this Agreement monetary relief (except for confidentiality, non-disparagement, releases, agreements not to xxx and other similar provisions in a settlement agreement);
(xiii) amend or pursuant to commitments modify, in any material respect, or terminate any Material Contract, material lease for Leased Real Property or material Company Permit or enter into any Contract that would have been a Material Contract had it been entered into prior to the date execution of this Agreement and disclosed Agreement, in each case other than in the ordinary course of business;
(xiv) other than in the ordinary course of business or to the other party in writing extent required by law, make any material Tax election, amend any Tax Return with respect to a material amount of Taxes, settle or otherwise disclosed finally resolve any controversy with respect to the other partya material amount of Taxes or change any method of Tax accounting;
(xv) (A) with regard to Intellectual Property, without the prior consent of the other partytransfer, such consent not to be unreasonably withheld: (i) sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of or encumber any assetsmaterial Intellectual Property, except other than non-exclusive licenses granted in the ordinary course of business; and (iiB) expend with regard to other assets, transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon, create or commit incur any Lien (other than Permitted Encumbrances) on or allow to expend lapse or expire or otherwise dispose of any amounts in material assets, licenses, operations, rights, product lines, businesses or interests therein of the Company or its Subsidiaries, except, with respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth foregoing clause (B), (x) in this Section 7.1(c); connection with sales of Company products or dispositions of inventory in the ordinary course of business (iiiy) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership sales or other business organization whatsoever; dispositions of obsolete assets or (ivz) acquire (by mergersales, amalgamationleases, consolidation or acquisition of shares or assets) any corporation, partnership licenses or other dispositions of assets with a fair market value not in excess of $100,000 in any transaction or series of related transactions or $300,000 in the aggregate (inclusive of any sales or dispositions made pursuant to clauses (x) or (y) of this paragraph);
(xvi) terminate any executive officers or hire any new employees unless such hiring is in the ordinary course of business organization consistent with past practice;
(xvii) adopt, enter into, amend, terminate or division thereofextend any Collective Bargaining Agreement;
(xviii) except as required pursuant to existing written, binding agreements in effect prior to the date of this Agreement, or as otherwise required by applicable Law, (A) grant or provide any severance or termination payments or benefits to any director, officer or, except for investments in securities made other than in the ordinary course of business, employees (who are not officers) of the Company or any of its Subsidiaries, (B) increase the compensation, bonus or pension, welfare, severance, change-in-control or other benefits of, pay any bonus to, or make any investmentnew equity awards to any director, either by purchase of shares or securitiesofficer or, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of businessbusiness consistent with past practice, purchase non-officer employee of the Company or any property of its Subsidiaries other than, in the case of non-officer employees, base salary increases or assets spot or other bonuses awarded in the ordinary course of business (which spot or other bonuses shall not exceed $20,000 in the aggregate), (C) establish, adopt, amend or terminate any Company Benefit Plan (except as required by Law) or amend the terms of any outstanding equity-based awards, (D) take any action to accelerate the vesting or payment, or fund or in any other individual way secure the payment, of compensation or entity; benefits under any Company Benefit Plan, to the extent not already provided in any such Company Benefit Plan, (vE) incur materially change any indebtedness for borrowed money actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, or (F) forgive any loans to directors, officers or key employees of the Company or any other material liability or obligation or issue of its Subsidiaries;
(xix) unless required by applicable Law, reclassify any debt securities or assume, guarantee, endorse or otherwise independent contractor as an accommodation become responsible foremployee of the Company or any of its Subsidiaries;
(xx) fail to use commercially reasonable efforts to renew or maintain the Insurance Policies or comparable replacement policies, other than in the ordinary course of business consistent with past practice;
(xxi) enter into any new line of business;
(xxii) adopt, enter into or effect any plan of complete or partial liquidation, dissolution, reorganization or restructuring;
(xxiii) take any action that would, or would be reasonably likely to, individually or in the aggregate, prevent, materially delay or materially impede the consummation of the Offer, the obligation Merger or the other transactions contemplated by this Agreement; or
(xxiv) agree, authorize, propose, commit or announce an intention to do any of any other individual the foregoing.
(b) Nothing contained herein shall give to Parent or entityPurchaser, directly or make any loans indirectly, rights to control or advances;direct the Company’s operations prior to the Effective Time in violation of applicable Law. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its operations and shall not be required to obtain consent of Parent if it reasonably believes that doing so would violate applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Einstein Noah Restaurant Group Inc)
Interim Operations. During the period from (a) From the date of execution of this Agreement and ending on the earlier of until the Effective Time and or the earlier termination of this Agreement in accordance with its terms, except (w) as set forth in Section 4.1(a) of the Company Disclosure Letter, (x) as otherwise expressly contemplated or permitted by this Agreement, (y) to the extent consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned) or (z) as required by applicable Law or by a Governmental Entity or by any Company Material Contract in effect as of the date of this Agreement, except with the prior written consent Company shall use reasonable best efforts to cause the business of the Offeror, acting reasonably, it and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business shall Subsidiaries to be conducted only in the usual and ordinary course of business and, to the extent consistent with past practicestherewith, it shall, and it shall cause its Subsidiaries to, use all commercially their respective reasonable best efforts to preserve their business organizations intact and maintain their existing relationships with Governmental Entities, customers, suppliers, distributors and preserve its business, assets and advantageous business relationshipsemployees. Caza shall consult with Notwithstanding the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any generality of the followingforegoing, and subject to the exceptions set forth in clauses (w), (x), (y) and (z) of the immediately preceding sentence, the Company shall not and shall not permit its Subsidiaries to:
(i) other than in connection with the Intermediate Merger, amend its constating documents; the Operating Agreement or the certificate of incorporation, bylaws or comparable formation or governing documents of the Company or any of the Company’s Subsidiaries;
(ii) issue acquire (whether by merger, consolidation or acquisition of stock or assets or any other business combination)
(A) any Person or any division thereof or equity outside the ordinary course of business from any other Person (other than on exercise the Company or surrender any direct or indirect wholly-owned Subsidiary of currently outstanding Caza Optionsthe Company) or (B) any assets (other than in the ordinary course of business and consistent with past practice), grantin the case of (B) with a value or purchase price in excess of $250,000 individually;
(iii) other than in connection with the Intermediate Merger, sell merge or pledge consolidate with any other Person or agree to restructure, reorganize or completely or partially liquidate the Company or any of its Subsidiaries, except for any such transactions among wholly-owned Subsidiaries of the Company;
(iv) issue, grantsell, sell pledge, dispose of or pledge encumber any securities of Cazalimited liability company interests or equity interests or options, warrants or securities convertible into other securities, commitments or rights convertible, exchangeable or exercisable fortherefor (collectively, “Equity Interests”) of the Company or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securitiesSubsidiaries, except as permitted issuances or dispositions of (A) Units pursuant to Company Options outstanding on the terms thereof date of this Agreement (or as permitted which become outstanding after the date of this Agreement in accordance with this Section 4.1(a)) under the Management Equity Plan, (B) any capital stock of any of the Company’s Subsidiaries to the Company or contemplated any other of its direct or indirect wholly-owned Subsidiaries, (C) Units, Restricted Units, Phantom Units, Residual Units, Company Options and/or rights to acquire Units in connection with grants or awards of stock-based compensation made in compliance with Section 4.1(a)(x) hereof or (D) Units as required by this Agreement; the Plan of Reorganization;
(ivv) split, combine combine, subdivide or reclassify any of its securities; (v) adopt a plan the Equity Interests of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; Company;
(vi) declare, set aside aside, establish a record date for, or pay any dividend dividends on or make any other distribution or payment distributions (whether payable in cash shares cash, stock, property or propertya combination thereof) in respect of its outstanding securities without the consent any of the OfferorEquity Interests of the Company or its Subsidiaries, which consent may be withheld in other than any dividends from any wholly-owned Subsidiary of the Offeror’s sole and absolute discretion; Company to the Company or to another wholly-owned Subsidiary of the Company;
(vii) enter into repurchase, redeem or modify any contract, agreement, commitment or arrangement with respect to otherwise acquire any of the foregoing Equity Interests of the Company, except as otherwise permitted for redemptions, purchases or contemplated by acquisitions pursuant to the exercise or settlement of Company Options, Restricted Units, Phantom Units, employee severance, retention, termination, change of control and other contractual rights existing on the date of this Agreement on the terms in effect on the date of this Agreement (excluding, for the avoidance of doubt, the Call Option under the PBGC Call Agreement);
(cviii) incur, or modify in any material respect the terms of, any material Indebtedness or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person (other than the Subsidiaries of the Company) (in each case, for the avoidance of doubt, excluding trade payables, capitalized lease obligations, or obligations issued or assumed as consideration for services or property, including inventory), except for (A) Indebtedness incurred under the Credit Facilities) in the ordinary course of business for working capital purposes, (B) letters of credit issued pursuant to (or guarantees permitted by) the Credit Facilities or otherwise issued in the ordinary course of business, (C) draws on the ABL Revolver in accordance with the terms thereof, or (D) interest rate and other hedging arrangements on customary commercial terms in the ordinary course of business;
(ix) grant any Lien on any assets that are material to the Company and its Subsidiaries taken as a whole, other than Permitted Liens;
(x) except for transactions disclosed as required pursuant to Company Plans in effect prior to the date of this Agreement, or as otherwise required by applicable Law or this Agreement, (A) grant any severance or termination payments or benefits to any Employee of the Company or any of its Subsidiaries, except, in the case of employees who are not executive officers, in the ordinary course of business, (B) materially increase the compensation, bonus or pensions or welfare benefits of any employee, except, in the case of employees who are not executive officers of the Company, in the ordinary course of business, (C) make any new equity awards to any Employee of the Company or any of its Subsidiaries, other than (1) grants of Residual Units, (2) new equity awards made in the ordinary course of business to any Employee hired or engaged by the Company or any of its Subsidiaries after the date hereof and (3) to the extent set forth in Section 4.1(a)(x) of the Company Disclosure Letter, Caza will notannual 2014 grants of Phantom Units, Restricted Units and will not permit Company Options to directors as required by the Director Equity Plan or the Management Equity Plan, as applicable, or (D) terminate or materially amend any of its subsidiaries to, directly Company Plan or indirectly, do establish or adopt any plan that would have been a Company Plan if it had been in effect as of the following date hereof;
(xi) except as required by GAAP, a Governmental Entity or applicable Law, make any material changes to accounting policies or principles;
(xii) other than (A) in the ordinary course of business and consistent with past practice, or (B) as otherwise contemplated or permitted by this Agreement or pursuant to commitments Section 4.1, (1) enter into any Contract that would have been a Company Material Contract had it been entered into prior to the date of this Agreement and disclosed or (2) terminate, consent to the other party termination of, materially amend or waive any material rights under any Company Material Contract in writing a manner materially adverse to the Company and its Subsidiaries excluding any termination due to expiration of such Company Material Contract in accordance with the terms of such Company Material Contract; provided in each case that the Company and its Subsidiaries shall be permitted to renew or replace any Company Material Contract with one or more Contracts on substantially similar terms;
(xiii) transfer, sell, lease, license, assign or otherwise disclosed dispose of any material assets or businesses of the Company and its Subsidiaries taken as a whole, including Equity Interests of any of its Subsidiaries, other than (A) as may be permitted pursuant to this Section 4.1(a), (B) in the ordinary course of business and in a manner consistent with past practice, (C) pursuant to Contracts in effect prior to the other partydate of this Agreement, without true and complete copies of which have been provided to Parent (except to the prior consent extent such agreements are subject to confidentiality restrictions), (D) pursuant to transactions solely among the Company and/or any of the other party, such consent not its Subsidiaries or (E) pursuant to be unreasonably withheld: (i) sell, pledge, dispose licenses or sublicenses of or encumber any assets, except Intellectual Property granted in the ordinary course of business; ;
(iixiv) expend or commit to expend any amounts in respect of capital expenses, excluding certain except for the expenditures which may be agreed to, from time to time, contemplated by the Offeror in writing, which for greater certainty, shall not be subject to the covenants five-year plan set forth in this Section 7.1(c); 4.1(a)(xiv) of the Company Disclosure Letter, make or authorize any binding capital expenditures in excess of $5,000,000 in the aggregate;
(iiixv) reorganizecompromise, amalgamatesettle or agree to settle any claims (A) involving amounts in excess of $1,000,000 individually or $3,000,000 in the aggregate that are not covered by insurance, merge or otherwise (B) that would impose any material non-monetary obligations on the Company or its Subsidiaries that would continue after the Effective Time;
(xvi) enter into any new line of business material to the Company and its Subsidiaries, taken as a whole;
(xvii) make, revoke, adopt, file or change any Tax election, any annual Tax accounting period, any method of Tax accounting, any income Tax Returns, surrender any claims for Tax refunds, amend any Tax Returns, enter into, revoke or amend a closing agreement, settle any Tax claim, audit or assessment, extend any statute of limitations with respect to Tax matters or any other Personright to claim a refund, corporation, partnership or surrender any offset or other business organization whatsoever; reduction in Tax liability;
(ivxviii) acquire (by propose, adopt or enter into a plan of complete or partial liquidation, dissolution, merger, amalgamationconsolidation, consolidation or acquisition of shares or assets) any corporationrestructuring, partnership recapitalization or other business organization reorganization of the Company or division thereof, orany of its Subsidiaries, except for investments in securities made accordance with the Plan of Reorganization;
(xix) fail to maintain insurance in at least such amounts and against at least such risks and losses as are consistent in all material respects with the Company’s and its Subsidiaries’ past practice in the ordinary course of business, ;
(xx) make any investment, either by purchase of shares capital investment in or securities, contributions of capital loan to any Person (other than the Company or any of its Subsidiaries);
(xxi) pay any management, monitoring or other shareholder fees or payments of a similar nature to subsidiaries), property transfer, or, except in or for the ordinary course of business, purchase any property or assets benefit of any other individual or entity; (v) incur any indebtedness for borrowed money Member or any Affiliate of any Member (other material liability than the Company or obligation or issue any debt securities or assumeof its Subsidiaries); or
(xxii) announce an intention to enter into any agreement, guarantee, endorse or otherwise as an accommodation become responsible formake a commitment, to do any of the foregoing prohibited actions.
(b) Nothing contained in this Agreement is intended to give Parent or Merger Sub, directly or indirectly, the obligation right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time, and nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations. Prior to the Effective Time, each of any other individual or entityParent and the Company shall exercise, or make any loans or advances;consistent with the terms and conditions of this Agreement, complete control and supervision over its and its respective Subsidiaries’ respective operations.
Appears in 1 contract
Samples: Merger Agreement (Textron Inc)
Interim Operations. (a) During the period from the date of execution of this Agreement and ending on to the earlier of the Effective Time and the termination of date, if any, on which this AgreementAgreement is terminated pursuant to Section 6.1, except except
(i) as required by Law, (ii) with the prior written consent of the OfferorNewco, acting reasonablywhich consent shall not be unreasonably withheld, and except delayed or conditioned or (iii) as otherwise required by law contemplated or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants , the Company shall, and agrees that shall cause its Subsidiaries to, carry on its business in the ordinary course and preserve intact its business organization and listing exchange status, keep available the services of its current officers and employees, maintain in effect all material licenses and permits required to carry on their respective businesses, maintain in effect any exemptive orders or exemptive relief which they have received from the SEC and which are currently in effect, and preserve their material business relationships and maintain generally its business relationships with its lenders and others having business relationships with it; provided, however, that no action by the Company or any of its Subsidiaries with respect to matters addressed specifically by any provision of this Section 4.1 shall be conducted only in the usual and ordinary course deemed a breach of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect this sentence unless such action would constitute a breach of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;such specific provision.
(b) Caza Without limiting the generality of the foregoing, during the period from the date of this Agreement to the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 6.1, except (i) as may be required by Law, (ii) with the prior written consent of Newco, which consent shall not be unreasonably withheld, delayed or conditioned, or (iii) as required, contemplated or permitted by this Agreement, the Company shall not, directly or indirectly, do or and shall not permit to occur any of the followingits Subsidiaries to:
(iA) issue, deliver, sell, dispose of, pledge or otherwise encumber, amend its constating documents; (ii) issue (other than on exercise the terms of, or surrender of currently outstanding Caza Options)authorize or propose the issuance, grantsale, sell disposition or pledge or agree to issueother encumbrance of (1) any shares of capital stock of any class or any other ownership interest of the Company or any of its Subsidiaries, grant, sell or pledge any securities of Cazaor rights convertible into, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a the right to acquiresubscribe for any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or any other ownership interest of the Company or any of its Subsidiaries, or (2) any other securities of Caza; the Company or any of its Subsidiaries in respect of, in lieu of, or in substitution for, Company Common Stock outstanding on the date hereof;
(iiiB) redeem, purchase or otherwise acquire acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding securitiesCompany Common Stock;
(C) split, combine, subdivide or reclassify any Company Common Stock or, except as permitted pursuant provided in Section 4.14, declare, set aside for payment or pay any dividend (whether in cash, stock or property, or any combination thereof) in respect of any Company Common Stock or otherwise make any payments to the terms thereof or stockholders in their capacity as permitted in accordance with or contemplated by this Agreement; such;
(iv) split, combine or reclassify any of its securities; (vD) adopt a plan of liquidation complete or resolutions providing for the partial liquidation, dissolution, merger, consolidation consolidation, restructuring, recapitalization or other reorganization of Caza; the Company or any of its Subsidiaries, other than the Transactions;
(viE) declareenter into any new line of business;
(F) other than in the ordinary course of business and consistent with past practices, set aside redeem, repurchase, prepay, defease, incur or pay otherwise acquire or amend or modify the terms of any dividend indebtedness for borrowed money, enter into any “keep well” or other distribution agreement to maintain any financial statement condition of another Person or pledge any of the Company’s assets or enter into any arrangement which would have the economic effect of any of the foregoing, in each case, in addition to that incurred as of the date of this Agreement or guarantee any such indebtedness;
(G) make any investment, investment contract or loan (other than any unfunded commitments existing as of the date hereof) either by sale or purchase of stock or securities or otherwise, contributions to capital, property transfers, or purchase of any property or assets of any other individual, Person or other entity (other than a Subsidiary), sell, dispose of, transfer, lease, amend, modify, grant waivers with respect to or discontinue any investment, investment contract or loan; or acquire, sell, lease or dispose of any non-investment assets that, in the aggregate, are material to the Company and its Subsidiaries, taken as a whole, to any Person other than a wholly-owned Subsidiary;
(H) except as provided for in this Agreement, grant any increase in, take any action to accelerate the vesting or payment (whether or fund or in cash shares or property) in respect any other way secure the payment of, the compensation and benefits of its outstanding securities without the consent any of the OfferorCompany’s directors, officers, consultants or employees, enter into any employment or severance agreement with any such director, officer, consultant or employee, or adopt, terminate or materially amend any Company Benefit Plan;
(I) make any material change in any of the financial accounting principles, practices or methods used by the Company unless required by GAAP or applicable Law;
(J) change its fiscal year;
(K) amend any material Tax Return of the Company, make, revoke or amend any material Tax election of the Company, adopt or change any Tax accounting principles, methods or policies other than as required by applicable Law, change any Tax accounting period, enter into any closing agreement as described in Section 7121 of the Code (or any corresponding or similar agreement under applicable state, local or foreign tax Law) affecting any material Tax liability or refund, or settle or compromise any material Tax liability or refund of the Company;
(L) directly or indirectly take any action, or knowingly fail to take any action, which consent may action or failure to act is reasonably likely to cause the Company to fail to qualify or not be withheld subject to tax as a RIC; provided, however, that on or before the Effective Time, the Company shall (if not adequately provided for by the Special Dividend contemplated by Section 4.14) take such actions as are necessary to ensure that (i) the Company would not be subject to the tax imposed under Section 4982(a) of the Code if the Effective Time were the end of the calendar year, (ii) the Company satisfies the requirements Section 852(a) of the Code for its last federal income tax year, and (iii) the Company is not subject to tax under Section 852(b)(1) or 852(b)(3)(A) of the Code in the Offeror’s sole and absolute discretion; its last federal income tax year.
(M) make or incur any obligation to make any capital expenditures;
(viiN) enter into or modify draw down from any contract, agreement, commitment or arrangement whereby the obligation or liability imposed on the Company or any of its Subsidiaries under such contract, agreement, commitment or arrangement would exceed $50,000, or whereby such contract, agreement, commitment or arrangement would otherwise constitute a Company Material Contract, or amend any contract, agreement, commitment or arrangements in existence on the date hereof that, after giving effect to such amendment, would impose an obligation or liability on the Company or any of its Subsidiaries under such contract, agreement, commitment or arrangement in excess of $50,000 or constitute a Company Material Contract;
(O) except as otherwise provided in this Agreement, enter into, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any Company Material Contract;
(P) commence or settle any material claim, suit, action or proceeding (other than in connection with or with respect to this Agreement or any of the foregoing except as otherwise permitted Transactions);
(Q) amend the certificate of incorporation or contemplated by this Agreement;bylaws of the Company or similar governing documents of any of its Subsidiaries; or
(R) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
(c) except for transactions disclosed in During the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to period from the date of this Agreement and disclosed to the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 6.1, Newco shall not (i) incur any liabilities or obligations (other party than in writing connection with its formation, its initial capitalization and the Transactions contemplated in this Agreement and the transactions contemplated by the Subscription Agreement), (ii) declare or otherwise disclosed pay any dividend or distribution or (iii) take any action that could impair its ability to pay and perform its obligations under Section 6.2 upon a termination of this Agreement. Newco will procure that, during the period from the date of this Agreement to the other partyearlier of the Effective Time and the date on which this Agreement is terminated pursuant to Section 6.1, without except (i) as required by Law or, (ii) with the prior written consent of the other partyCompany, such which consent shall not to be unreasonably withheld: (i) sell, pledgedelayed or conditioned, dispose of or encumber any assets, except MAST and the Funds will manage the MAST Portfolio Assets in the ordinary course consistent with past practice and, without limiting the generality of business; (ii) expend the foregoing, none of MAST or commit the Funds will subject any of the MAST Portfolio Assets to expend any amounts in respect Encumbrance that would prohibit the transfer of capital expensessuch asset to Newco under the Subscription Agreement. For the avoidance of doubt, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to Funds will provide the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made Company prompt notice in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;event that
Appears in 1 contract
Samples: Merger Agreement
Interim Operations. During (a) The Company and Parent, each covenant and agree as to itself and its Subsidiaries that, after the period date of this Agreement and prior to the Effective Time (unless Parent or the Company, as applicable, shall otherwise approve in writing (such approval not to be unreasonably withheld, conditioned or delayed)), its business and its Subsidiaries’ businesses 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 their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of its and its Subsidiaries’ present officers, employees and agents, except as (i) otherwise expressly contemplated or required by this Agreement, (ii) required by applicable Law or (iii) set forth on Section 6.1(a) of the Company Disclosure Letter, as it relates to the Company and its Subsidiaries, or on Section 6.1(a) of the Parent Disclosure Letter, as it relates to Parent and its Subsidiaries. Without limiting the generality of and in furtherance of the foregoing, from the date of execution this Agreement until the Effective Time, except as (A) expressly contemplated or required by this Agreement, (B) required by applicable Law, (C) required by any Benefit Plan or collective bargaining agreement, (D) as approved in writing by the Company or Parent (as applicable) (such approval not to be unreasonably withheld, conditioned or delayed, in the case of Parent’s approval, with respect to Section 6.1(a)(iv), (vi), (x), (xi), (xii), (xvi), (xvii), (xiv), (xx) or (xxi), and in the case of the Company’s approval, with respect to Section 6.1(a)(iv), (vi), (vii), (x), (xi), (xii), (xix), (xx) or (xxi)) or (E) set forth on Section 6.1(a) of the Company Disclosure Letter, as it relates to the Company and its Subsidiaries, or on Section 6.1(a) of the Parent Disclosure Letter, as it relates to Parent and its Subsidiaries, each Party, on its own account, will not and will cause its Subsidiaries not to:
(i) amend its certificate or articles of incorporation or bylaws or comparable governing documents other than amendments that solely effect ministerial changes to such documents and that would not adversely affect the consummation of the Merger or the other transactions contemplated by this Agreement;
(ii) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or other equity interests (other than dividends paid by a wholly owned Subsidiary of such Party to such Party or another wholly owned Subsidiary of such Party);
(iii) except for any transactions among or solely involving a Party’s wholly owned Subsidiaries or among wholly owned Subsidiaries of a Party’s Subsidiaries, merge or consolidate itself or any of its Subsidiaries with any other Person, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its material assets, operations or businesses;
(iv) acquire assets or businesses, whether by merger, consolidation, purchase or otherwise, from any other Person with a fair market value or purchase price, in the case of the Company, in excess of $2,000,000 individually or $10,000,000 in the aggregate or, in the case of Parent, in excess of $6,000,000 individually or $30,000,000 in the aggregate, in any transaction or series of related transactions, other than acquisitions of goods, services and supplies in the ordinary course of business;
(v) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, or otherwise enter into any Contract or understanding with respect to the voting of, any shares of its capital stock (or equity interests) or of any of its Subsidiaries (other than in respect of equity-based awards outstanding as of the date of this Agreement, in each case in accordance with their terms and the plan documents), or securities convertible or exchangeable into or exercisable for any shares of such capital stock (or equity interests), or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(vi) create or incur any encumbrance on any assets of such Party or any of its Subsidiaries, other than Permitted Liens or encumbrances incurred in connection with the incurrence of Indebtedness to the extent permitted under Section 6.1(a)(x);
(vii) make any loans, advances, guarantees or capital contributions to or investments in any Person, except, in the case of Parent, any such transaction not to exceed $3,000,000 individually or $15,000,000 in the aggregate;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock (or equity interests) or securities convertible or exchangeable into or exercisable for any shares of its capital stock (or equity interests), other than with respect to (A) the capital stock or other equity interests of a wholly owned Subsidiary of the Company or Parent, as applicable, (B) the acquisition of shares of Company Common Stock or Parent Ordinary Shares by the Company or Parent, respectively, that are tendered by holders of equity-based awards to satisfy the obligations to pay the exercise price or Tax withholding obligations with respect to such awards, and (C) the acquisition by the Company or Parent of equity-based awards in connection with the forfeiture of such awards;
(ix) sell, transfer, lease, divest or otherwise dispose of, whether by merger, consolidation, sale or otherwise, any assets, business or a division of any business with a value in the case of the Company, in excess of $2,000,000 individually or $10,000,000 in the aggregate or, in the case of Parent, in excess of $6,000,000 individually or $30,000,000 in the aggregate, in each case other than sales of inventory or obsolete equipment in the ordinary course of business consistent with past practice;
(x) incur, assume, guarantee or otherwise become liable for, prepay, redeem or defease any Indebtedness (including the issuance of any debt securities, warrants or other rights to acquire any debt security), except for (A) in the case of Parent, Indebtedness for borrowed money incurred in the ordinary course of business not to exceed $30,000,000 individually or $50,000,000 in the aggregate, (B) Indebtedness in replacement of existing Indebtedness for borrowed money on terms substantially consistent with or more favorable to Parent than the Indebtedness being replaced, (C) guarantees of Indebtedness of its wholly owned Subsidiaries otherwise incurred in compliance with this Section 6.1(a)(x) or (D) Indebtedness incurred by Parent owed to any of its wholly owned Subsidiaries or by any of Parent’s wholly owned Subsidiaries and owed to Parent or any of its wholly owned Subsidiaries, or by the Company owed to any of its wholly owned Subsidiaries or by any of the Company’s wholly owned Subsidiaries and owed to the Company or any of its wholly owned Subsidiaries;
(xi) make or authorize any payment of, or accrual or commitment for, capital expenditures in excess of $12,000,000, in the case of the Company, or $45,000,000, in the case of Parent, except (A) any such expenditure to the extent reasonably necessary to avoid a material business interruption as a result of any act of God, war, terrorism, earthquake, fire, hurricane, storm, flood, civil disturbance, explosion, partial or entire failure of utilities or information technology systems, or any other similar cause not reasonably within the control of such Party or its Subsidiaries, or (B) expenditures that the Company or Parent reasonably determines are necessary to maintain the safety and integrity of any asset or property in response to any unanticipated and subsequently discovered events, occurrences or developments (provided that the Company or Parent, as applicable, will use its reasonable best efforts to consult with the other Party prior to making or agreeing to any such capital expenditure);
(xii) (A) enter into any Contract or other arrangement (other than any Contract that is expressly permitted or contemplated to be entered into by this Agreement) that would have been a Material Contract had it been entered into prior to this Agreement, (B) materially amend, modify, supplement, waive, terminate, assign, convey or otherwise transfer, in whole or in part, any Material Contract, or (C) forgive, compromise, cancel, modify or waive any debts or claims held by it or waive any rights having in each case of this clause (C) a value in excess of, in the case of the Company, $1,000,000 individually or $5,000,000 in the aggregate or, in the case of Parent, $3,000,000 individually or $15,000,000 in the aggregate;
(xiii) enter into or modify any Contract relating to, or otherwise enter into, modify, implement or consummate, a Related Party Transaction;
(xiv) other than in the ordinary course of business, settle any action, suit, claim, hearing, arbitration, investigation or other proceedings for an amount, in the case of the Company, in excess of $1,000,000 individually or $5,000,000 in the aggregate or, in the case of Parent, in excess of $3,000,000 individually or $15,000,000 in the aggregate, or any obligation or liability of it in excess of such amount or on a basis that would result in the imposition of any writ, judgment, decree, settlement, award, injunction or similar order of any Governmental Entity that would restrict in a material respect the future activity or conduct of such Party or any of its Subsidiaries or involve the admission of any criminal liability;
(xv) make any changes with respect to financial accounting policies or procedures, except as required by GAAP or IFRS, as applicable, or any interpretation thereof, including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, or Law, including pursuant to SEC or AMF rule or policy;
(xvi) other than in the ordinary course of business, make, change or revoke any material Tax election, adopt or change any material Tax accounting method, file any material amended Tax Return, take any action which would reasonably be expected to cause the Parent to be treated as a “domestic corporation” pursuant to Section 7874(b) of the Code as a result of the Merger, take any action which would reasonably be expected to cause the Company to be treated as an “expatriated entity” within the meaning of Section 7874(a)(2) of the Code as a result of the Merger, settle or compromise any material Tax claim, audit, assessment or dispute for an amount materially in excess of the amount reserved or accrued on such Party’s most recent consolidated balance sheet included in such Party’s Reports, or surrender any right to claim a refund of a material amount of Taxes;
(xvii) other than in accordance with the terms and regular expiration thereof, terminate or permit any material Company Permit (in the case of the Company) or Parent Permit (in the case of Parent) to lapse or fail to apply on a timely basis (subject to any cure periods) for any renewal of any renewable material Company Permit (in the case of the Company) or Parent Permit (in the case of Parent);
(xviii) other than on account of changes in the insurance industry generally in the United States or France, make or agree to any material changes to be made to any insurance policies so as to materially affect the insurance coverage of the Party or its Subsidiaries or assets following the Effective Time;
(xix) enter into, terminate, adopt or amend any employment, change in control or severance agreement or any other Benefit Plan or collective bargaining agreement, except for (A) any amendment to any Benefit Plan (excluding employment, change in control, severance or similar agreement with any individual officer, director or employee) that does not increase the cost of such plan or the benefits provided thereunder to such Party or its Subsidiaries, or (B) actions permitted to be taken by clause (xx) below without the consent of the applicable Party;
(xx) in the case of the Company and its Subsidiaries, (A) increase or change the compensation or benefits payable to any Employees (other than executive officers), other than salary or wage increases for Employees (other than executive officers) in the ordinary course of business and consistent with past practice which, in the aggregate, do not exceed the previous year’s aggregate compensation for all Employees (other than executive officers) by more than 3%, (B) increase or change the compensation or benefits payable to any Employees who are executive officers, (C) pay or grant, or commit to pay or grant any bonus or incentive compensation, (D) grant or accelerate the vesting of any equity-based awards or other compensation or amend or modify the terms of any such outstanding awards, under any Company Benefit Plan, except as provided in this Agreement, (E) grant any transaction or retention bonuses or any discretionary bonus (including bonus plans that exist as of the date hereof), (F) pay annual bonuses or performance bonuses, other than for completed periods based on actual performance through the end of the applicable performance period, or if the Company is contractually obligated to in connection with a termination of employment, (G) increase or change the severance terms applicable to any Employee, (H) terminate the employment or services of any Employee that is more senior than a Senior Vice President, other than for cause, or (I) hire any officer, employee, independent contractor or consultant who has target annual compensation greater than $200,000;
(xxi) in the case of the Company and its Subsidiaries, implement any store closures or mass layoff of employees;
(xxii) enter into any new line of business outside of the existing businesses of a Party and its Subsidiaries;
(xxiii) in the case of Parent, permit Merger Sub to incur any obligation or liability, engage in any business or activity of any type or kind whatsoever or enter into any agreement or arrangement with any Person, except for obligations incurred in connection with its incorporation, the due diligence investigation of the Company and its Subsidiaries or the negotiation and consummation of this Agreement and ending on the transactions contemplated hereby and thereby; or (xxiv) agree, authorize or commit to do any of the foregoing actions prohibited by clauses (i) through (xxiii) of this
(b) From the date of this Agreement until the earlier of the Effective Time and the termination of this AgreementAgreement in accordance with Article VIII, except with Parent and the prior written consent Company shall not take or permit any of their respective Subsidiaries to take or agree to take any action that would reasonably be expected to prevent, materially impair or materially delay the consummation of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:Merger.
(ac) Caza covenants and agrees that its business Nothing contained in this Agreement shall be conducted only in give Parent or the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall notCompany, directly or indirectly, do the right to control or permit direct the other Party’s operations prior to occur the Effective Time. Prior to the Effective Time, each Party will exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations. Nothing in this Agreement, including any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise actions, rights or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants restrictions set forth in this Section 7.1(c); (iii) reorganizeAgreement, amalgamate, merge or otherwise continue with will be interpreted in such a way as to require compliance by any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made Party if such compliance would result in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets violation of any other individual rule, regulation or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation policy of any other individual federal, state, provincial, local or entityforeign court or Governmental Entity with jurisdiction over enforcement of any Antitrust Laws (any such Governmental Entity, a “Governmental Antitrust Entity”) or make any loans or advances;applicable Law.
Appears in 1 contract
Samples: Merger Agreement
Interim Operations. During (a) Except as set forth in the period corresponding section of the Company Disclosure Schedule (including the capital expenditure, spending and other budgets contained therein) or otherwise as expressly provided hereby, subject to applicable law, the Company covenants and agrees as to itself and its Subsidiaries that, from the date of execution of this Agreement and ending on the earlier of until the Effective Time Time, the business of it and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that its business Subsidiaries shall be conducted only in the usual and ordinary course of business consistent with past practicespractice and, to the extent consistent therewith, it and it its Subsidiaries shall use all commercially their respective reasonable commercial efforts to maintain and preserve its businessbusiness organization intact and maintain its existing relations and goodwill with Governmental Entities, assets customers, suppliers, distributors, creditors, lessors, employees and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs associates and keep available the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly or indirectly, do or permit to occur any services of the following:present employees and agents of the Company and its Subsidiaries. Without limiting the generality of the foregoing and in furtherance thereof, from the date of this Agreement until the Effective Time, the Company will not and will not permit its Subsidiaries to (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed):
(i) amend adopt or propose any change in its constating articles of incorporation or by-laws (or similar governing documents; );
(ii) issue merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly-owned Subsidiaries of the Company that are not obligors or guarantors of third party indebtedness;
(iii) except as set forth in Section 7.1(a)(iii) of the Company Disclosure Schedule, acquire assets from any other Person with a value or purchase price in the aggregate in excess of $250,000 other than acquisitions pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement (other than any such Contract that is a Significant Contract but is not listed on Section 5.11 of the Company Disclosure Schedule or a true and correct copy of which was not previously made available to Parent prior to the date hereof) and the purchase of materials, supplies or services for the manufacture, delivery or sale of the Company’s products in the ordinary course of business;
(iv) other than pursuant to Contracts to the extent in effect as of immediately prior to the execution of this Agreement and set forth in Section 7.1 (a)(iv) of the Company Disclosure Schedule, and other than the issuance of shares of Common Stock upon the exercise or surrender of currently outstanding Caza Options)Company Options outstanding on the date hereof, disclosed pursuant to Section 5.2 and in accordance with their terms, issue, sell, pledge, dispose of, grant, sell transfer, lease, license, guarantee, encumber, or pledge or agree to issueauthorize the issuance, sale, pledge, disposition, grant, sell transfer, lease, license, guarantee or pledge encumbrance of, any securities shares of Cazastock of the Company or any of its Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), or securities convertible into or exchangeable or exercisable forfor any shares of such stock, or otherwise evidencing a right any options, warrants or other rights of any kind to acquire, securities acquire any shares of Caza; such stock or such convertible or exchangeable securities;
(iiiv) redeem, purchase grant any Lien on assets of the Company or otherwise acquire any of its outstanding securities, except as permitted Subsidiaries in excess of $50,000 or outside the ordinary course of business consistent with past practice;
(vi) other than pursuant to Contracts to the terms thereof extent in effect as of immediately prior to the execution of this Agreement and set forth in Section 7.1(a)(vi) of the Company Disclosure Schedule, make any loan, advance or as permitted capital contribution to or investment in accordance with or contemplated by this Agreement; any Person in excess of $50,000 in the aggregate;
(iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vivii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its Stock (except for dividends or other distributions by any direct or indirect wholly-owned Subsidiary of the foregoing Company to the Company) or to any other direct or indirect wholly-owned Subsidiary of the Company or enter into any agreement with respect to the voting of its stock, except for dividends declared in January, 2006 at a rate per share no greater than the amount of each of the quarterly dividends which the Company has paid for the immediate past four (4) quarters and which have not been paid as otherwise permitted or contemplated by this Agreementof the date hereof;
(cviii) except for transactions disclosed in the Disclosure Letterreclassify, Caza will notcombine, and will not permit any of its subsidiaries tosplit, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, do any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock except the following acceptance of shares of Common Stock as payment of the exercise price of stock options or for withholding taxes incurred in connection with the exercise of Company Options in accordance with past practice and the terms of the applicable award and the acceptance of Class B Common Stock in exchange for Common Stock;
(ix) waive any stock repurchase rights; accelerate, amend or change the period of exercisability of options granted under any employee, consultant, director or other stock plans; or authorize cash payments in exchange for any options granted under any of such plans (other than pursuant to cashless exercise provisions in effect on the date hereof);
(x) incur any indebtedness for borrowed money which, together with existing indebtedness and capital leases exceeds $27.5 million, or guarantee such indebtedness of another Person, issue or sell any securities or warrants or other rights to acquire any security of the Company or any of its Subsidiaries, except for the issuance of Common Stock upon the exercise of Company Options or the exchange of Class B Common Stock, except, in the case of each of the foregoing, arrangements by and between any direct or indirect wholly-owned Subsidiary of the Company and the Company or any other direct or indirect wholly-owned Subsidiary of the Company;
(xi) make or authorize any capital expenditure which individually exceeds $100,000 or in the aggregate exceeds $300,000, except as disclosed in Section 7.1(a)(xi) of the Company Disclosure Schedule, or any operating expenditure other than in the ordinary course of business and consistent with the operating budgets disclosed in Section 7.1(a)(xi) of the Company Disclosure Schedule;
(xii) other than as contemplated otherwise permitted by this Agreement or pursuant to commitments Agreement, enter into any Contract that would have been a Significant Contract had it been entered into prior to the date execution of this Agreement and disclosed except with respect to the other party in writing or otherwise disclosed to the other party, without the prior consent sale of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made Company’s products in the ordinary course of business, make any investment, either by purchase purchases for the manufacture or sale of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except the Company’s products in the ordinary course of businessbusiness or other contracts in the ordinary course of business consistent with past practice;
(xiii) amend or modify in any material respect, purchase or terminate or waive any property material right or benefit under, any Significant Contract;
(xiv) except as required by GAAP or applicable Law (as to which the Company will give prompt written notice to the Parent), make any change in financial accounting methods, principles or practices;
(xv) settle any litigation or other proceedings before or threatened to be brought before a Governmental Entity for an amount in excess of $100,000 or which would be reasonably likely to have an adverse impact of $100,000 on the net income of the Company or any of its Subsidiaries or on any current or future litigation or other proceeding of the Company or any of its Subsidiaries;
(xvi) pay, discharge, settle or satisfy any liabilities or obligations of any nature in excess of $100,000, other than any payment, discharge, settlement or satisfaction (A) required by applicable Law, (B) in the ordinary course of business or (C) in accordance with their terms, of liabilities or obligations recognized or disclosed in the most recent financial statements (or the notes thereto) of the Company included in the Company Reports;
(xvii) waive the benefits of, agree to modify in any manner, terminate, release any person from, or knowingly fail to use reasonable efforts to enforce, the confidentiality or nondisclosure provisions of any Significant Contract to which the Company or any of its Subsidiaries is a party or of which the Company or any of its Subsidiaries is a named third party beneficiary;
(xviii) cancel or fail to use commercially reasonable efforts to renew, with reasonable substitutes, any insurance policy naming the Company or any of its Subsidiaries as a beneficiary or loss payee;
(xix) except as disclosed in Section 7.1(a)(xix) of the Company Disclosure Schedule, sell, lease, license, or otherwise dispose of any assets of the Company or its Subsidiaries except for ordinary course sales of products or services provided in the ordinary course of business consistent with past practice or obsolete assets, and except for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $100,000 in the aggregate, other than pursuant to Contracts in effect prior to the execution of this Agreement (other than any such Contract that is a Significant Contract but is not listed on Section 5.11 of the Company Disclosure Schedule or a true and correct copy of which was not previously made available to Parent prior to the date hereof);
(xx) except as required pursuant to existing written, binding agreements or Benefit Plans in effect prior to the execution of this Agreement and set forth in Sections 5.13 or 7.1(a)(xx) of the Company Disclosure Schedule, or as otherwise required by Law or with respect to new hires below the officer level (except with respect to clause (6) below, which will be applicable to all new hires), (1) enter into any new employment or compensatory agreements with any officer, employee or director of the Company or any of its Subsidiaries (including entering into any bonus, severance, change of control, termination, reduction-in- force or consulting agreement or other individual employee benefits arrangement or entityagreement pursuant to which such person has the right to any form of compensation from the Company or any of its Subsidiaries); except, with respect to any new officer that will replace a former officer, entering into a new employment or company agreement in which the overall compensatory package of such officer is no more favorable (in terms of compensation, severance, duration and other matters) than the former officer whom the new officer will replace; (v2) incur promote any indebtedness for borrowed money employee, other than promotions on terms that are no more favorable (in terms of compensation, severance, duration and other matters) than the terms upon which any employee previously serving in the applicable capacity was entitled; or (3) increase the compensation or employee benefits of any officer, employee, consultant, or director of the Company or any of its Subsidiaries, except with respect to employees only, for increases in the ordinary course of business consistent with past practice (including timing of increases); or (4) hire any officer or director, except in connection with the replacement of an officer whose employment has terminated, provided the overall compensatory package of such officer is no more favorable (in terms of compensation, severance, duration and other material liability matters) than the terminated officer; or obligation (5) adopt or issue amend any debt securities Benefit Plan in any respect that would increase the cost of such Benefit Plan to the Company, or assumeaccelerate vesting or payment under, guaranteeany Benefit Plan; or (6) agree or commit to provide severance benefits to any newly hired officer, endorse employee or otherwise director of the Company or any of its Subsidiaries other than as an accommodation become responsible for, required by Benefit Plans set forth on Section 5.13 of the obligation Company Disclosure Schedules;
(xxi) engage in the conduct of any new line of business (other individual than any new product or entityservice offerings reflected on the capital expenditure, spending and other budgets);
(xxii) manage working capital other than in the ordinary course of business consistent with past practice, including extending the payment of accounts payable and/or accelerating the collection of accounts receivable, which has an adverse impact of $1 million or make more on cash flow; or
(xxiii) agree, resolve or commit to do any loans or advances;of the foregoing.
Appears in 1 contract
Interim Operations. During the period from the date of execution of this Agreement (a) The Company covenants and ending on the earlier of agrees as to itself and its Subsidiaries that, during the Effective Time and the termination of this AgreementPeriod, except with the prior written consent of the Offeror, acting reasonably, and except (i) as otherwise expressly required by law or expressly permitted or specifically contemplated by this Agreement:
Agreement or the Restructuring Term Sheet, (aii) Caza covenants and agrees that its business as required by applicable Law (including the Bankruptcy Code) or (iii) as consented to in writing by the Requisite Supporting Lenders (which consent shall not be unreasonably withheld, conditioned or delayed), (x) the Business shall be conducted only in the usual and ordinary course of business consistent with past practices, practice and it in accordance with applicable Law and (y) the Company and its Subsidiaries shall use all their respective commercially reasonable efforts to maintain preserve intact the Business and preserve its businesstheir relationship with customers, assets suppliers, distributors, wholesalers, retailers, employees and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;Governmental Entities.
(b) Caza Without limiting the generality of, and in furtherance of, the foregoing, during the Effective Period, except (x) as otherwise expressly required or contemplated by this Agreement or the Restructuring Term Sheet, (y) as required by applicable Law (including the Bankruptcy Code) or (z) as consented to in writing by the Requisite Supporting Lenders (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, do or permit to occur any of the following:
(i) amend the certificate of incorporation, bylaws or other organizational documents of the Company or its constating documents; Subsidiaries;
(ii) issue merge or consolidate the Company or any of its Subsidiaries with any other Person, or restructure, reorganize or completely or partially liquidate the Company or any of its Subsidiaries or otherwise enter into any agreements providing for the sale of their respective material assets, operations or business;
(iii) acquire assets outside of the ordinary course of business from any other Person;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any shares of capital stock or Equity Interests of the Company or any of its Subsidiaries (other than on exercise the issuance of shares by a wholly owned Subsidiary of the Company to the Company or surrender of currently outstanding Caza Optionsanother wholly owned Subsidiary), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible or exchangeable into or exchangeable exercisable for any shares of such capital stock or exercisable forEquity Interests, or otherwise evidencing a right any options, warrants or other rights of any kind to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securitiesthe foregoing;
(v) incur, except as permitted pursuant to create or assume any Encumbrance (other than Permitted Encumbrances) on any properties or assets, tangible or intangible, of the terms thereof Company or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; Subsidiaries;
(vi) (A) incur, assume or guarantee any Indebtedness or capitalized lease obligations or issue any debt securities or (B) make any loans, advances, guarantees or capital contributions to, or investments in, any other Person;
(vii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock or Equity Interests (except for dividends paid by any direct or indirect wholly owned Subsidiary to the foregoing Company or to any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock or Equity Interests (other than this Agreement);
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or Equity Interests or securities convertible or exchangeable into or exercisable for any of the foregoing;
(ix) except in accordance with the Budget (as otherwise permitted defined in the Cash Collateral Orders), make or contemplated by authorize any capital expenditure;
(x) enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement;
(cxi) except for transactions disclosed other than in the Disclosure Letterordinary course of business, Caza will notcancel or terminate (other than, and will not permit for the avoidance of doubt, any expiration in accordance with its terms), or modify or amend in any material respect, or waive any material rights under, any Material Contract;
(xii) make any material changes with respect to material accounting policies or procedures, except as required by changes in applicable Law or GAAP;
(xiii) settle or compromise any (A) Cause of Action (other than settlements involving only unsecured claims with an allowed amount of less than one hundred thousand dollars ($100,000)), or (B) patent-related Cause of Action involving any of the Company Intellectual Property;
(xiv) transfer, assign, sell, lease, grant (other than in the ordinary course of business) any license with respect to, or, to the extent within the control of the Company or any of its subsidiaries toSubsidiaries, directly abandon or indirectlypermit to lapse, do any material Intellectual Property;
(xv) terminate or fail to renew any material Business Permit;
(xvi) other than in the ordinary course of business, sell, pledge, dispose of, transfer or authorize the sale, pledge, disposition or transfer of any assets or properties of the Company or its Subsidiaries;
(xvii) grant any material licenses, sublicenses, covenants not to assert or similar rights with respect to any assets or properties, whether tangible or intangible, of the Company or its Subsidiaries;
(xviii) fail to use commercially reasonable efforts to maintain the Insurance Policies or to renew or replace the Insurance Policies following other than their termination;
(xix) except as contemplated by required pursuant to the terms of any Debtor Plan in effect as of the date of this Agreement or pursuant to commitments the Approved XXXX, (A) increase in any manner the compensation, consulting fees, incentive, bonus, retirement, welfare, fringe or other benefits, severance or termination pay of any employee or independent contractor, (B) become a party to, establish, adopt, amend, commence participation in or terminate any Debtor Plan or any arrangement that would have been a Debtor Plan had it been entered into prior to this Agreement, (C) grant any new awards, or amend or modify the terms of any outstanding awards, under any Debtor Plan, (D) take any action to accelerate the vesting or lapsing of restrictions or payment, or fund or in any other way secure the payment, of compensation or benefits under any Debtor Plan, (E) change any actuarial or other assumptions used to calculate funding obligations with respect to any Debtor Plan that is required by applicable Law to be funded or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP, (F) forgive any loans or issue any loans (other than routine travel advances issued in the ordinary course of business) to any employee, (G) hire any employee or engage any independent contractor (who is a natural person) other than the engagement of independent contractors to fill vacancies or staff currently existing or contemplated projects to the extent not currently staffed or (H) terminate the employment of any officer other than for cause other than any officer who was provided with written notice of termination prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent who is listed on Section 7.1(b)(xix) of the Company Disclosure Letter;
(xx) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other partyagreement with a labor union, such works council or similar organization;
(xxi) (A) change in any material respect any material method of accounting of the Company or its Subsidiaries for Tax purposes; (B) enter into any agreement with any Taxing Authority (including a “closing agreement” under Code Section 7121) with respect to any material Tax or Tax Returns of the Company or its Subsidiaries; (C) surrender a right of the Company or its Subsidiaries to a material Tax refund; (D) change an accounting period of the Company or its Subsidiaries with respect to any material Tax; (E) file an amended Tax Return; (F) change or revoke any material election with respect to Taxes; (G) make any material election with respect to Taxes that is inconsistent with past practice; (H) file any Tax Return that is inconsistent with past practice; (I) consent not to be unreasonably withheld: any extension or waiver of the limitations period applicable to any material Tax claim or assessment (i) sell, pledge, dispose of or encumber any assets, except other than in the ordinary course of business); or (iiJ) expend take any action (or commit fail to expend take any amounts action) that would result in respect a loss of capital expensesany material Tax losses, excluding certain expenditures which credits or other attributes that may be agreed toused to reduce Tax liabilities (provided that, from time to timefor the avoidance of doubt, by the Offeror in writing, which for greater certainty, Company shall not be subject deemed to have violated the covenant in this clause (J) as the result of any action taken at the direction of the Supporting Lenders in connection with the Interfund Transfers);
(xxii) revalue any assets or properties of the Company or its Subsidiaries (including Inventory), except to the covenants set forth extent required by GAAP; or
(xxiii) agree, authorize or commit, in this Section 7.1(c); writing or otherwise, to take any of the foregoing actions.
(iiic) reorganize, amalgamate, merge The Supporting Lenders shall not knowingly take or otherwise continue with permit any other Person, corporation, partnership of their Subsidiaries to take any action that is reasonably likely to prevent or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition materially impede the consummation of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;Transactions.
Appears in 1 contract
Samples: Restructuring Support Agreement (Melinta Therapeutics, Inc. /New/)
Interim Operations. During The Company covenants and agrees as to itself and its Subsidiary that, after the period date hereof and prior to the Effective Time, unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, it shall comply with all of the covenants provided in this Section 5.1 (provided, however, with respect to the covenants in subsections (c)(v), (f), (g), (k), (l), and (m) only, Company shall comply with such covenant unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, it being agreed that Parent's approval shall be deemed to have been given if Parent does not provide to the Company written notice of its objection within three(3) Business Days of written notice from the date of execution of this Agreement and ending on the earlier of the Effective Time and the termination of this AgreementCompany), except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this AgreementAgreement :
(a) Caza covenants the business of it and agrees that its business Subsidiary shall be conducted only in the usual and ordinary course of business consistent with past practicespractices and, to the extent consistent therewith, it and it its Subsidiary shall use all commercially reasonable efforts to maintain and preserve its businessbusiness organization intact and maintain its existing relations and goodwill with customers, assets suppliers, distributors, creditors, lessors, employees and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoassociates;
(b) Caza it shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend issue, sell or otherwise dispose of or subject to Lien (other than Permitted Liens) its constating documentsSubsidiary's Capital Stock owned by it; (ii) issue amend its charter or bylaws; (iii) split, combine or reclassify its outstanding shares of Capital Stock; (iv) declare, set aside or pay any dividend payable in cash, stock or property in respect of any Capital Stock; (v) repurchase, redeem or otherwise acquire or permit its Subsidiary 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; (vi) form, organize or capitalize any Subsidiary; or (vii) adopt a plan of complete or partial liquidation or dissolution, merger or otherwise restructure or recapitalize or consolidate with any Person other than Merger Sub;
(c) neither it nor its Subsidiary shall (i) authorize for issuance or issue, sell or otherwise dispose of or subject to any Lien (other than on exercise or surrender Permitted Liens) any shares of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Cazaits Capital Stock, or securities convertible into or exchangeable or exercisable for, options, warrants, calls, commitments or otherwise evidencing a right rights of any kind to acquire, securities any shares of Cazaits Capital Stock of any class or any Voting Debt (other than Shares issuable pursuant to Company Options outstanding on the date hereof); (ii) transfer, lease, license, guarantee, sell or otherwise dispose of or subject to any Lien (other than Permitted Liens) any other property or assets or incur or modify any indebtedness or other liability; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become liable or responsible for(whether directly, contingently or otherwise) for the obligation obligations of any other individual Person; (iv) make any loans to any other Person (other than to the Subsidiary or entitycustomary loans or advances to employees in connection with business-related travel in the ordinary course of business consistent with past practices); or (v) make any commitments for, make or authorize any capital expenditures other than in amounts less than $10,000 individually and $50,000 in the aggregate (unless and to the extent fully paid for in advance by a customer of the Company) or, by any means, make any acquisition of, or investment in, assets or stock of any other Person;
(d) except as may be required to comply with applicable law or by existing contractual commitments, neither it nor its Subsidiary shall (i) enter into any new agreements or commitments for any severance or termination pay to, or enter into any employment or severance agreement with, any of its directors, officers or employees or consultants except for specific arrangements required as a condition to closing of the Merger or (ii) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plan or increase or accelerate the salary, wage, bonus or other compensation of any employees or directors or consultants or pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing Compensation and Benefit Plan;
(e) neither it nor its Subsidiary shall, except as may be required as a result of a change in law or in GAAP, change any of the accounting principles or practices used by it;
(f) neither it nor its Subsidiary shall, except as may be required under GAAP in connection with the audit of the 2002 Financial Statements (as defined in Section 6.2(l)) or the preparation of the Company Reports after the date hereof, in each case in the ordinary course of business consistent with past practice, revalue in any respect any of its assets, including writing-down the value of inventory or writing-off notes or accounts receivable, or make any loans adjustment in any accrual or advancesreserve other than in the ordinary course of business consistent with past practices; provided, however, no adjustments greater than $100,000 in the aggregate shall be made in the Company's PECFA reserve;
(g) neither it nor its Subsidiary shall settle or compromise any claims or litigation or terminate or amend or modify any of its material Contracts or waive, release or assign any rights or claims, except (i) PECFA claims where the difference between the claim value and the settlement amount is less than $25,000 and (ii) other claims or litigation less than $10,000 if such settlement or compromise would be in excess of any reserve or accrual on the Balance Sheet with respect to such claim;
(h) neither it nor its Subsidiary shall make any Tax election or, to the extent within the control of the Company or its Subsidiary, permit any insurance policy naming it as a beneficiary or loss-payable payee to be canceled or terminated;
(i) neither it nor its Subsidiary shall take any action or omit to take any action that would cause any of its representations and warranties herein to become untrue in any material respect;
(j) neither it nor its Subsidiary will authorize or enter into any agreement to do any of the foregoing;
(k) neither it nor its Subsidiary shall enter into any agreement to perform work reimbursable under the PECFA program unless, as a part of all agreements for such work, it expressly disclaims in writing any obligation to guarantee or reimburse any amounts not paid by the State of Wisconsin under such program;
(l) neither it nor its Subsidiary shall enter into any agreement to provide services having a value of, or with projected revenues over the life of the project, greater than $100,000 and not on the Company's standard terms and conditions; and
(m) neither it nor its Subsidiary shall enter into any agreement or arrangement pursuant to which it grants any customer or any other person a license or other rights in any Intellectual Property, invention, development or improvement to pre-existing Intellectual Property. Nothing in this subsection shall prevent the Company from vesting in a customer the rights to project data and reports generated in the course of performing services for that customer.
Appears in 1 contract
Samples: Merger Agreement (Envirogen Inc)
Interim Operations. During Except (1) as required by applicable Law, (2) as Parent may approve in writing (such approval not to be unreasonably withheld, conditioned or delayed) (3) as expressly disclosed in Section 6.1(a) of the period Company Disclosure Letter or (4) as expressly provided for in this Agreement, the Company covenants and agrees as to itself and its Subsidiaries that, from and after the date of execution of this Agreement and ending on prior to the earlier of (x) the Effective Time and the or (y) termination of this Agreement, except Agreement in accordance with ARTICLE VIII (A) the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that Company shall use its commercially reasonable efforts to conduct its business shall be conducted only and the business of its Subsidiaries in the usual and ordinary course of business consistent with past practicespractice in all material respects; provided, however that no action that is specifically permitted by any of subclauses (a) through (n) of Section 6.1 (B) shall be deemed a breach of either this clause (A) or any other subclause of Section 6.1 (B) and (B) without limiting the generality of, and it in furtherance of, the foregoing the Company shall use all commercially reasonable efforts to maintain not and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect will not permit any of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;Subsidiaries to:
(ba) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating certificate of incorporation or bylaws (or comparable governing documents; (ii) issue (), other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant amendments to the terms thereof governing documents of any wholly owned Subsidiary of the Company that would not prevent, materially delay or as permitted in accordance with materially impair the Merger or the other transactions contemplated by this Agreement; , (ivii) split, combine combine, subdivide or reclassify its outstanding equity interests (except for any such transaction by a wholly owned Subsidiary of its securities; the Company which remains a wholly owned Subsidiary after consummation of such transaction), (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (viiii) declare, set aside or pay any dividend or other distribution payable in cash, stock or payment property (whether in cash shares or propertyany combination thereof) in respect of any of its outstanding securities without the consent equity interests (except for any dividends or distributions paid by a direct or indirect wholly owned Subsidiary of the Offeror, which consent may be withheld in Company to another direct or indirect wholly owned Subsidiary of the Offeror’s sole and absolute discretion; Company or to the Company) or (viiiv) enter purchase, repurchase, redeem or otherwise acquire any of its equity interests or any securities convertible or exchangeable into or modify exercisable for any contractof its equity interests (other than (1) pursuant to the exercise of Company Options or the forfeiture of, agreement, commitment or arrangement withholding of Taxes with respect to to, Company Options, Restricted Stock Units or Performance Restricted Stock Units outstanding on the date hereof or (2) purchases, repurchases, redemptions or other acquisitions of securities of any wholly owned Subsidiary of the foregoing except as otherwise permitted Company by the Company or any other wholly owned Subsidiary of the Company);
(b) merge or consolidate with any other Person, or restructure, reorganize or completely or partially liquidate (other than mergers among, or the restructuring, reorganization or liquidation of any wholly owned Subsidiaries of the Company that would not prevent, materially delay or materially impair the Merger or the other transactions contemplated by this Agreement);
(c) except for transactions as required by a Company Plan in effect as of the date hereof and disclosed in writing to Parent, (i) increase the Disclosure Lettercompensation or benefits payable to the Chief Executive Officer of the Company or any employee of the Company who directly reports to the Chief Executive Office of the Company, Caza will not(ii) accelerate the vesting or payment of any compensation, award or benefit, grant or pay any extraordinary bonus or implement any new severance or other compensation or benefit entitlements, including any transaction, retention or other similar bonus, (iii) adopt, terminate or make any change to any Company Plan that would materially increase the costs to the Company in respect of such Company Plan, or (iv) hire, engage or terminate the employment or engagement of any executive officer of the Company;
(d) incur any Indebtedness, guarantee, endorse, assume or otherwise become liable or responsible for any Indebtedness of another Person or issue any rights to acquire any Indebtedness, except (i) borrowings under the Company’s revolving credit facility (as in effect as of the date hereof) pursuant to the Company’s Existing Credit Agreement either (x) in the ordinary course of business or (y) as directed by Parent or Merger Sub at Closing, (ii) inter-company Indebtedness among the Company and will its wholly owned Subsidiaries, (iii)(A) to the extent not permit drawn upon and payments are not triggered thereby, letters of credit, bank guarantees, security or performance bonds or similar credit support instruments and (B) overdraft facilities or cash management programs, in each case issued, made or entered into in the ordinary course of business consistent with past practice, (iv) hedging in compliance with the hedging strategy of the Company as of the date of this Agreement in the ordinary course of business consistent with past practice and not for speculative purposes or (v) Indebtedness incurred at Closing at the direction of Parent or Merger Sub in accordance with Section 6.19;
(e) make or commit to any capital expenditures other than in the ordinary course of business consistent with past practice and which do not exceed, in the aggregate, for the period between the date of this Agreement and the Closing Date, 55% of the capital expenditures provided for in the 2024 budget previously provided to Parent;
(f) other than in the ordinary course of business consistent with past practice, transfer, lease, license, sell, assign, mortgage, pledge, place a Lien upon or otherwise dispose of any properties or assets (including equity interests of any of its subsidiaries Subsidiaries but not including any Intellectual Property), with a fair market value in excess of $5,000,000 individually or $10,000,000 in the aggregate (other than transactions among the Company and its wholly owned Subsidiaries);
(g) issue, deliver, sell, grant, transfer, or encumber, or authorize the issuance, delivery, sale, grant, transfer or encumbrance of, any shares of its capital stock or any other equity interest in the Company or any Company Subsidiary or any securities convertible or exchangeable into or exercisable for, or any options, warrants or other rights to acquire, any such shares or equity interest, except (i) for any Shares issued pursuant to Company Options, Restricted Stock Units and Performance Restricted Stock Units outstanding on the date of this Agreement in accordance with the existing terms of such awards and the applicable Company Stock Plan, that are outstanding on the date hereof and (ii) by wholly owned Subsidiaries to the Company or to any other wholly owned Subsidiary of the Company;
(h) other than in the ordinary course of business, spend or commit to spend in excess of $5,000,000 individually or $10,000,000 in the aggregate to acquire any business or to acquire assets or other property, whether by merger, consolidation, purchase of property or assets or otherwise (valuing any non-cash consideration at its fair market value as of the date of the agreement for such acquisition);
(i) make any material change with respect to its financial accounting policies or procedures, except as required by changes in GAAP (or any interpretation thereof) or by applicable Law;
(j) abandon any material existing lines of business or enter into any new line of business other than any line of business that is reasonably ancillary to and a reasonably foreseeable extension of any line of business as of the date of this Agreement, as determined by the Company in its sole discretion;
(k) other than in the ordinary course of business consistent with past practice, make any loans, advances or capital contributions to, directly or indirectlyinvestments in, do any Person (other than loans, advances or capital contributions to the Company or any direct or indirect wholly owned Subsidiary of the following other than as contemplated by this Agreement Company);
(l) (i) amend or pursuant to commitments modify in any material respect or terminate (excluding terminations upon expiration of the term thereof in accordance with the terms thereof) any Material Contract or waive, release or assign any material rights, claims or benefits under any Material Contract or (ii) enter into any Contract that would have been a Material Contract had it been entered into prior to the date of this Agreement and disclosed unless it is on terms substantially consistent with, or on terms more favorable to the other party in writing Company or otherwise disclosed its Subsidiaries (and to Parent and its Subsidiaries following the other partyClosing) than, without either a Contract it is replacing; provided that the prior consent foregoing shall not prohibit or restrict the ability of the other party, such consent not Company or its Subsidiaries to be unreasonably withheld: (itake any action described in this Section 6.1(l) sell, pledge, dispose of or encumber any assets, except in the ordinary course of businessbusiness consistent with past practice; provided, further that (iix) expend this Section 6.1(l) shall not prohibit or commit restrict the Company or any of its Subsidiaries from entering into a Contract to expend the extent that such Contract implements an act or failure to act that is expressly permitted under any amounts of Sections 6.1(a) through 6.1(l) and (y) for the avoidance of doubt, this Section 6.1(k) shall not prohibit or restrict any Company Plans and (z) this Section 6.1(l) shall not apply to the Existing Credit Agreement and the Existing Receivables Agreement, in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writingeach case, which for greater certaintyshall be exclusively governed by Section 6.19;
(A) settle any action, shall suit, case, litigation, claim, hearing, arbitration, investigation or other proceedings before or threatened to be brought before a Governmental Entity, other than settlements if the amount of any such settlement is not be subject in excess of $1,000,000 individually or $5,000,000 in the aggregate, in each case in excess of amounts available under the Company’s applicable insurance policy; provided that such settlements do not involve any admission of guilt, non-de minimis injunctive or equitable relief or impose non-de minimis restrictions on the business activities of the Company and its Subsidiaries or Parent and its Subsidiaries, or (B) waive, release, grant or transfer any material claim or right of material value or knowingly consent to the covenants set forth in this Section 7.1(c); termination of any material claim or right of material value;
(iiin) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than in the ordinary course of businessbusiness consistent with past practice, make or change any material Tax election, make any investmentmaterial change to any annual Tax accounting period, either by purchase adopt or change any material method of shares Tax accounting, amend any material Tax Returns or securitiesfile any claims for material Tax refunds, contributions enter into any material closing agreement, settle any material Tax claim, audit or assessment or surrender any right to claim a material Tax refund, offset or other reduction in Tax liability;
(o) negotiate or enter into any agreement with a Union; or
(p) agree, resolve or commit to do any of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;foregoing.
Appears in 1 contract
Samples: Merger Agreement (Agiliti, Inc. \De)
Interim Operations. During the period (a) Except as otherwise required by Law or expressly required by this Agreement, each Seller agrees, from the date it becomes a Party hereto until the Closing, to use its best efforts to cause the Company and its Subsidiaries (solely to the extent that such Seller (directly or through its Subsidiary) (i) has a right to vote for or against the taking or not taking of execution any such action, either as a shareholder or through one or more representatives appointed to the board of this Agreement and ending on the earlier directors or similar governing or advisory body of the Effective Time and Company or a Company Subsidiary, (ii) has a veto, consent or other right pursuant to the termination of this Company Shareholders Agreement, except alone or together with the prior written consent other Sellers then party hereto, to cause any such action to be taken or not taken or (iii) with respect to shareholder or board meetings of the OfferorCompany or any Company Subsidiary, acting reasonablyhas the right at such meeting to speak in favor of or against the Company or a Company Subsidiary taking the course of action contemplated by this Section 6.1(a) without unreasonably disrupting such meeting (clause (i) through clause (iii) “Specified Rights”)) to (w) conduct their respective businesses in the ordinary course of business, on an arms-length basis and in compliance in all material respects with Law, (x) comply with all Covered Laws and (y) use their respective best efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Authorities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of their present employees and agents and (z) make all filings and other submissions required to be made by the Company and its Subsidiaries with the CVM, the United States Securities and Exchange Commission or other Governmental Authorities in compliance with Law and on a timely basis. Without limiting the generality of, and in furtherance of, the foregoing, each Seller agrees, from the date it becomes a Party hereto until the Closing, (solely to the extent that such Seller has (directly or through its Subsidiary) Specified Rights with respect to such matter) to (except as otherwise required by law Law, or expressly permitted or specifically contemplated required by this Agreement:
(a) Caza covenants , or approved by Buyer, it being understood that if a notice requesting such approval is made to Buyer and agrees that its business Buyer does not respond to such notice within 5 Business Days of receipt thereof, such non-response shall be conducted only deemed approval of the matter referred to in such notice) use its best efforts to cause the Company and each Company Subsidiary not to (in each case, except in the usual and ordinary course of business consistent with past practices, where not material to the Company and it shall use all commercially reasonable efforts its Subsidiaries):
(i) amend or propose to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with amend any governing document of the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoCompany or any Company Subsidiary;
(bii) Caza shall notmerge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among Wholly-Owned Subsidiaries of the Company, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any shares of capital stock of the Company or of the Company Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, except in connection with the Company’s employee benefits plans and stock option plans;
(iv) redeem, purchase or acquire or offer to redeem, purchase or acquire, directly or indirectly, do any shares of its capital stock or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire for any shares of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; capital stock;
(ivv) split, combine or reclassify any outstanding shares of its securities; capital stock (v) adopt a plan or any securities convertible into or exchangeable for any shares of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; its capital stock);
(vi) declare, set aside or pay any dividend or other distribution payable in cash, stock, property or payment (whether in cash otherwise with respect to shares or property) in respect of its outstanding securities without capital stock (except (A) as required by Law or the consent Company’s by-laws, the by-laws of a Company Subsidiary in existence on the date hereof or the Company Shareholders Agreement as amended through the Buyer Initial Offer Submission Date, (B) with respect to dividends and distributions by any direct or indirect Wholly-Owned Subsidiary of the OfferorCompany to either the Company or (C) cash dividends made pursuant to and in compliance with Section 2.10) or enter into any agreement with respect to the voting of its capital stock, which consent may be withheld it being understood that the Company is not able to decide on the distribution of dividends by certain Company Subsidiaries pursuant to the shareholders agreements of such Subsidiaries set forth in the Offeror’s sole and absolute discretion; or Schedule 4.2(a)(ii);
(vii) enter into make any loans, advances, guarantees or modify capital contributions to or investments in any contract, agreement, commitment Person (other than the Company or arrangement with respect to any direct or indirect Wholly-Owned Subsidiary of the foregoing except as otherwise permitted or contemplated by this AgreementCompany) in excess of R$10 million in the aggregate;
(cviii) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii6.1(a)(viii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiariesSchedule 6.1(a), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person (other than a direct or indirect Subsidiary of the Company), or issue or sell any debt securities, or warrants or other rights to acquire any debt security, of the Company or any of its Subsidiaries, other than for (A) the incurrence by the Company and its Subsidiaries of indebtedness for borrowed money in the ordinary course of business in an amount not to exceed R$50 million in the aggregate, (B) the incurrence by the Company and its Subsidiaries of indebtedness for borrowed money on the most favorable market terms reasonably available to the Company or such Company Subsidiary and consistent with the indebtedness being replaced, or (C) guarantees of indebtedness for borrowed money of Subsidiaries of the Company;
(ix) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, licenses, operations, rights, product lines, properties, businesses or interests therein (including capital stock of any of its subsidiaries), except for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of R$5 million in any single transaction or series of related transactions, other than pursuant to Contracts in effect prior to the date hereof;
(x) except as set forth in Section 6.1(a)(x) of Schedule 6.1(a), acquire outside of the ordinary course of business (including by merger, exchange, consolidation, acquisition of stock or assets or otherwise) any material assets, or any corporation, partnership, joint venture, limited liability company or other business organization (or division or material assets thereof), in any single transaction or series of related transactions in excess of R$50 million;
(xi) enter into any transaction with any Insider (other than any employment or consulting engagement arrangements with customary and arm’s-length terms entered into in the ordinary course of business);
(xii) cancel any debts or waive any claims or rights of material value except for cancellations made or waivers granted to any Person other than an Insider in the ordinary course of business which, in the aggregate, are not material;
(xiii) conclude or agree to any material corrective actions, plans, consent decrees, actions or orders;
(xiv) initiate, settle, compromise or waive any rights relating to any material litigation or arbitration matters or other proceedings before a Governmental Authority or any other material liability Person (A) for amounts in excess of R$50 million or obligation (B) with respect to settlements, compromises or issue waivers, where such settlement, compromise or waiver imposes non-monetary restrictions, obligations or penalties on the Company or any debt securities Company Subsidiary or assumewould materially damage the reputation of the Company or any Company Subsidiary;
(xv) make any changes with respect to accounting policies or procedures, guaranteeexcept as required by changes in Law or Brazilian GAAP;
(xvi) except as set forth in Section 6.1(a)(xvi) of Schedule 6.1(a), endorse (A) materially increase the compensation or otherwise as an accommodation become responsible for, the obligation benefits of any directors, officers or employees of the Company or any of the Company Subsidiaries, (B) enter into, modify or terminate any employment, severance or similar Contract with any directors, officers or employees of the Company or any of the Company Subsidiaries, other individual than employment agreements terminable at will or entity(C) take any action to accelerate the vesting or lapsing of restrictions or payment;
(xvii) make or change any (A) material Tax election, accounting method, principle or practice from those utilized in the preparation of the latest Tax Returns , (B) settlement or final resolution of any Tax controversy or (C) amendment to any Tax Return;
(xviii) take any action that would (or fail to take any action where such failure would), individually or in the aggregate, result in or reasonably be likely to result in any of the conditions in this Agreement set forth in Article VII not being satisfied; or
(xix) enter into or propose to enter into, or make modify or propose to modify, any loans Contract which obligates or advances;would obligate the Company or any Company Subsidiary to take any of the actions set forth in this Section 6.1(a). It is understood and agreed that to the extent a Seller has exercised all of the Specified Rights available to it or its Subsidiary in connection with a matter covered by this Section 6.1(a) in furtherance of its obligation to use best efforts to cause the Company and/or its Subsidiaries to take (or, as applicable, not take) an action pursuant to this Section 6.1(a), and the Company or such Company Subsidiary nonetheless takes an action that such Seller was using its best efforts to cause not to be taken (or the Company or such Company Subsidiary nonetheless does not take an action that such Seller was using its best efforts to cause to be taken), then such Seller shall not be in breach of its obligations under this Section 6.1(a) as a result of the Company or such Company Subsidiary having taken (or, as applicable, not taken) such action.
(b) Each Seller shall use its best efforts to cause the Company and the Company Subsidiaries to, to the extent permissible by Law, and subject to acknowledgment by Buyer that it is restricted in its ability to trade Shares of the Company and its Subsidiaries, promptly notify Buyer of (i) any emergency involving the Company or any Company Subsidiary, (ii) any material deviation by the Company or any Company Subsidiary from the ordinary course of business or any material change in the operation of the properties of the Company or any Company Subsidiary and (iii) any material claims, complaints, investigations or hearings (or communications indicating that the same may be contemplated) in any case initiated by any Governmental Authority regarding the Company or any Company Subsidiary.
Appears in 1 contract
Samples: Share Purchase Agreement (State Grid Corp of China)
Interim Operations. During The Company covenants and agrees as to itself and its Subsidiaries that, after the period date hereof and until the earlier to occur of the termination of this Agreement or the Effective Time (except (A) as otherwise expressly contemplated by this Agreement or the Transactions, (B) as Parent may approve in writing, which approval shall not be unreasonably withheld, (C) as set forth in Section 6.1 of the Company Disclosure Letter or (D) as required by applicable Laws), the business of the Company and its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, the Company and its Subsidiaries shall use their respective commercially reasonable efforts to preserve their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, lessors, employees and business associates and keep available the services of its and its Subsidiaries' present employees and agents. Without limiting the generality of the foregoing and in furtherance thereof, from the date of execution this Agreement until the earlier to occur of the termination of this Agreement or the Effective Time, except (A) as otherwise expressly contemplated by this Agreement or the Transactions, (B) as Parent may approve in writing, which approval shall not be unreasonably withheld, (C) as set forth in Section 6.1 of the Company Disclosure Letter or (D) as required by applicable Laws, the Company will not and will not permit its Subsidiaries to: adopt or propose any change in its certificate of incorporation or bylaws or other applicable governing instruments; merge, consolidate, restructure, reorganize or completely or partially liquidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly owned Subsidiaries of the Company, or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses, except in each case with respect to any sale to a third party, or liquidation, of Campus Outfitters, L.L.C. so long as the net cash flow generated from such sale or liquidation of Campus Outfitters, L.L.C. (including any cash needed to pay any liabilities or obligations incurred in connection with or arising as a result of such sale or liquidation) is not less than negative $300,000; provided, that in the case of a sale of the membership interests or material assets of Campus Outfitters, L.L.C. (A) for purposes of calculating the net cash flow, if the purchaser forgives any amounts owed by the Company to such purchaser, then the amount forgiven shall be deemed a receipt of cash in such amount and (B) the terms of such sale shall be reasonably acceptable to Parent; acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $25,000 in any transaction or series of related transactions, other than acquisitions pursuant to Material Contracts in effect as of the date of this Agreement or pursuant to Section 6.1(a)(x) below; issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than the issuance of shares by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than upon the exercise of Company Options or warrants or rights to purchase Shares that are outstanding on the date of this Agreement; create or incur any Lien on any assets of the Company or any of its Subsidiaries having a value in excess of $25,000; make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company) in excess of $25,000 in the aggregate; declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary or enter into any agreement with respect to the voting of its capital stock); reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock, except upon exercise of any Company Options outstanding as of the date hereof; incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for indebtedness for borrowed money incurred under the Loan Agreement; make or authorize any capital expenditure in excess of $50,000, individually or in the aggregate; enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement; make any changes with respect to accounting policies or procedures, except as required by changes in GAAP; settle any litigation or other proceedings for an amount in excess of $25,000 (net of insurance coverage) or any obligation or liability of the Company in excess of such amount; amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it or waive any rights having in each case a value in excess of $25,000; make any material Tax election, change an annual accounting period, file any amended material Tax Return, enter into any material closing agreement, waive or extend any statute of limitation with respect to material Taxes, settle or compromise any material Tax liability, claim or assessment (other than the payment in the ordinary course of business of Taxes that are due and payable), or surrender any right to claim a refund of material Taxes; transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, licenses (other than licenses to customers that lapse or expire in accordance with their terms), operations, rights, product lines, businesses or interests therein of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, except (A) in connection with the sale of Company products and services provided in the ordinary course of business, (B) sales of obsolete assets or (C) sales, leases, licenses or other dispositions of assets not included in clauses (A) or (B) above with a fair market value not in excess of $50,000 in the aggregate; except as required pursuant to existing written, binding agreements, policies or benefit plans in effect prior to the date of this Agreement and ending on the earlier set forth in Section 5.1(i)(i) or Section 5.1(i)(viii) of the Effective Time and the termination of this AgreementCompany Disclosure Letter, except with the prior written consent of the Offeror, acting reasonably, and except or as otherwise required by law applicable Law, (A) grant or expressly permitted provide any severance or specifically contemplated by this Agreement:
termination payments or benefits to any director, officer, employee or other service provider of the Company or any of its Subsidiaries, (aB) Caza covenants and agrees that increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any director, officer, employee or other service provider of the Company or any of its business shall be conducted only Subsidiaries, except for increases in base salary for employees earning less than $75,000 annually in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts (C) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards, (D) take any action to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with accelerate the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly vesting or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Cazapayment, or securities convertible into fund or exchangeable in any other way secure the payment, of compensation or exercisable forbenefits under any Benefit Plan, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted extent not already provided in accordance with or contemplated by this Agreement; any such Benefit Plan, (ivE) split, combine or reclassify change any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend actuarial or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or (F) make or forgive any loans to directors, officers or employees of the foregoing except as otherwise permitted Company or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries toSubsidiaries; knowingly take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Offer set forth in Exhibit 1 not being satisfied or the conditions to the Merger set forth in Article VII not being satisfied; or agree, directly authorize or indirectly, commit to do any of the following other than as contemplated foregoing. Prior to making any written or material oral communications to officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by this Agreement the Transactions, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall reasonably cooperate in providing any such mutually agreeable communication. Parent shall not knowingly take any action or pursuant omit to commitments entered into prior take any action that is reasonably likely to result in any of the conditions to the date of this Agreement and disclosed to the other party in writing or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants Offer set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge Exhibit 1 not being satisfied or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments the conditions to the Merger set forth in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;Article VII not being satisfied.
Appears in 1 contract
Samples: Merger Agreement (Varsity Group Inc)
Interim Operations. During (a) The Company covenants and agrees as to itself and its Subsidiaries that, after the period date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing, and except as otherwise expressly contemplated by this Agreement) and except as required by this Agreement or applicable Laws, the business of it and 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 their business organizations intact and maintain existing relations and goodwill with Governmental Entities, customers, suppliers, distributors, creditors, franchisees, lessors, employees and business associates and keep available the services of the present employees and agents of the Company and its Subsidiaries. Without limiting the generality of the foregoing and in furtherance thereof, from the date of execution this Agreement until the Effective Time, except (A) as otherwise expressly required by this Agreement, (B) as Parent may approve in writing (such approval not to be unreasonably withheld or delayed) or (C) as set forth in Section 6.1 of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:
(i) adopt or propose any change in its articles of incorporation or by-laws or other applicable governing instruments;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person, except for any such transactions among wholly-owned Subsidiaries of the Company, or restructure, reorganize or completely or partially liquidate or otherwise enter into any agreements or arrangements imposing material changes or restrictions on its assets, operations or businesses;
(iii) acquire assets outside of the ordinary course of business from any other Person in any transaction or series of related transactions, other than (A) acquisitions pursuant to Contracts in effect as of the date of this Agreement and ending or (B) otherwise, in compliance with the latest annual plan furnished to Parent prior to the date of this Agreement (the “Budget”);
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than the issuance of shares by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary, the issuance of shares of the Company pursuant to the standby commitment stock options granted to certain members of the JP Acquisition Fund Group, or the issuance of shares of the Company pursuant to Company Options or Company Awards existing on the earlier date hereof), or securities convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;
(v) create or incur any Lien material to the Company or any of its Subsidiaries on any assets of the Effective Time and Company or any of its Subsidiaries having a value in excess of $100,000;
(vi) make any loans, advances or capital contributions to or investments in any Person (other than the termination Company or any direct or indirect wholly-owned Subsidiary of the Company) other than as set forth in the Budget;
(vii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly-owned Subsidiary to the Company or to any other direct or indirect wholly-owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;
(viii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(ix) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, except for (i) guarantees of franchisee obligations incurred in the ordinary course of business, (ii) indebtedness incurred in replacement of existing indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, (iii) guarantees incurred in compliance with this AgreementSection 6.1 by the Company of indebtedness of wholly-owned Subsidiaries of the Company, or (iv) otherwise, in compliance with the Budget;
(x) except in compliance with the Budget, make or authorize any capital expenditure;
(xi) except with the prior written consent of the OfferorParent, acting reasonablywhich consent shall not unreasonably be withheld, and delayed or conditioned, enter into any Contract that would have been a Material Contract had it been entered into prior to this Agreement;
(xii) make any material changes with respect to accounting policies or procedures, except as otherwise required by law changes in applicable generally accepted accounting principles or expressly permitted or specifically contemplated by this Agreement:applicable Law;
(axiii) Caza covenants and agrees that settle any litigation or other proceedings before a Governmental Entity for an amount in excess of $100,000 or any obligation or liability of the Company in excess of such amount;
(xiv) amend, modify or terminate any Material Contract, or cancel, modify or waive any debts or claims held by it or waive any rights having in each case a value in excess of $100,000;
(xv) make or change any material Tax election, file any amended Tax Return, enter into any closing agreement, waive or extend any statute of limitation with respect to Taxes, settle or compromise any Tax liability, claim or assessment, surrender any right to claim a refund of Taxes or take any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(xvi) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any material assets or any businesses of the Company or its business shall be conducted only Subsidiaries, including capital stock of any of its Subsidiaries;
(xvii) (i) sell, assign, or grant any security interest in any Owned Intellectual Property, (ii) grant to any third party any license in, to or under any Company Intellectual Property, except pursuant to non-exclusive licenses entered into with franchisees in the usual and ordinary course of business consistent with past practicespractice, (iii) develop, create, or invent any Intellectual Property jointly with any third party, (iv) disclose or allow to be disclosed to any Person not an Employee any Company Intellectual Property not heretofore a matter of public knowledge, or (v) permit any item of Owned Intellectual Property to lapse or to be abandoned, dedicated to the public, or disclaimed, and it the Company and its Subsidiaries shall use perform all commercially reasonable efforts applicable filings, recordings, and other acts, and pay all required fees and taxes, to maintain and preserve protect its business, assets interest in each and advantageous business relationships. Caza shall consult with the Offeror in respect every item of its ongoing business and affairs and keep the Offeror apprised of all material developments relating theretoCompany Intellectual Property;
(bxviii) Caza shall not, directly or indirectly, do or permit to occur any of the following:
(i) amend its constating documents; (ii) issue (other than on exercise or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted required pursuant to the terms thereof or as permitted existing written, binding agreements in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (vi) declare, set aside or pay any dividend or other distribution or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offeror, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries to, directly or indirectly, do any of the following other than as contemplated by this Agreement or pursuant to commitments entered into effect prior to the date of this Agreement and disclosed to the other party set forth in writing or otherwise disclosed to the other party, without the prior consent Section 5.1(h)(i) of the other partyCompany Disclosure Letter, such consent not to be unreasonably withheld: or as otherwise required by applicable Law, (i) sellgrant or provide any severance or termination payments or benefits to any director, pledgeofficer or employee of the Company or any of its Subsidiaries, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend increase the compensation, bonus or commit to expend any amounts in respect of capital expensespension, excluding certain expenditures which may be agreed towelfare, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership severance or other business organization whatsoever; (iv) acquire (by mergerbenefits of, amalgamation, consolidation or acquisition of shares or assets) pay any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entitybonus to, or make any new equity awards to any director, officer or employee of the Company or any of its Subsidiaries, (iii) establish, adopt, amend or terminate any Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Benefit Plan, to the extent not already provided in any such Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP; or (vi) forgive any loans to directors, officers or advancesemployees of the Company or any of its Subsidiaries;
(xix) fail to renew leases of real property that expire prior to the Effective Time, in accordance with their respective terms;
(xx) take any action or omit to take any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article VIII not being satisfied; or
(xxi) agree, authorize or commit to do any of the foregoing.
(b) Prior to making any written or oral communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
Appears in 1 contract
Interim Operations. During (a) Except (i) as described in Section 5.1(a) of the Company Disclosure Letter, (ii) as otherwise expressly required by this Agreement or any other Transaction Document (including in connection with the Private Placements), (iii) as required by applicable Law or COVID-19 Measures or (iv) as Parent shall otherwise consent to in writing (which consent shall not be unreasonably withheld, conditioned, delayed, or denied), the Company covenants and agrees as to itself and its Subsidiaries that, during the period from the date of execution this Agreement until the Closing, or the earlier termination of this Agreement and ending on in accordance with its terms, the earlier of the Effective Time and the termination of this Agreement, except with the prior written consent of the Offeror, acting reasonably, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
Company shall (aA) Caza covenants and agrees that operate its business shall be conducted only in the usual and ordinary course of business consistent with past practices, practice and it shall (B) use all commercially reasonable efforts to maintain and preserve intact its businessbusiness organization, assets assets, properties and advantageous material business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;relations.
(b) Caza shall notWithout limiting the generality of, directly and in furtherance of, the foregoing, from the date of this Agreement until the Closing or indirectlythe earlier termination of this Agreement in accordance with its terms, do or permit to occur any except (v) as described in the corresponding subsection of Section 5.1(b) of the followingCompany Disclosure Letter, (w) as otherwise expressly required by this Agreement or any Transaction Document, (x) as required by applicable Law or COVID-19 Measures or (y) as Parent shall otherwise consent to in writing (which consent shall not be unreasonably withheld, conditioned, delayed or denied), the Company will not and will not permit its Subsidiaries to:
(i) amend adopt or propose any change in its constating documents; or its Subsidiaries’ Organizational Documents;
(ii) issue (other than on exercise A) merge or surrender of currently outstanding Caza Options), grant, sell consolidate itself or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Caza; (iii) redeem, purchase or otherwise acquire any of its outstanding securitiesSubsidiaries with any other Person, except as permitted pursuant to the terms thereof for transactions among its wholly owned Subsidiaries or as permitted in accordance with or contemplated by this Agreement; (iv) split, combine or reclassify any of its securities; (vB) adopt or enter into a plan of liquidation complete or resolutions providing for the partial liquidation, dissolution, merger, consolidation consolidation, restructuring, recapitalization or other reorganization of Caza; the Company or its Subsidiaries;
(iii) acquire assets outside of the ordinary course of business from any other Person with a value or purchase price in the aggregate in excess of $200,000, or acquire any business or entity (whether by merger or consolidation, by purchase of substantially all assets or equity interests or by any other manner), in each case, in any transaction or series of related transactions, other than acquisitions or other transactions pursuant to Contracts to which the Company or any of its Subsidiaries are a party that are in effect as of the date of this Agreement;
(iv) sell, lease, license or otherwise dispose of any of its material assets or properties (other than Intellectual Property), except (A) for sales, leases, licenses or other dispositions in the ordinary course of business and (B) for sales, leases, licenses or other dispositions of assets and properties with a fair market value not in excess of $150,000 in the aggregate;
(v) except pursuant to awards granted under the Company’s Stock Plan in the ordinary course of business and in accordance with the terms of the Stock Plan as of the date of this Agreement, or in connection with the Company Warrant Settlement or the Preferred Stock Conversion, issue, sell, grant or authorize the issuance, sale or grant of any shares of capital stock or other securities of the Company or any of its Subsidiaries (other than issuances by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company), or any options, warrants, convertible securities, subscription rights or other similar rights entitling its holder to receive or acquire any shares of such capital stock or other securities of the Company or any of its Subsidiaries;
(vi) reclassify, split, combine, subdivide, redeem or repurchase, any capital stock of the Company or options, warrants or securities convertible or exchangeable into or exercisable for any shares of its capital stock, except in connection with the net exercise or settlement of awards, repurchases of unvested shares subject to early-exercised Company Options under the Company’s Stock Plan or in connection with the Company Warrant Settlement or the Preferred Stock Conversion;
(vii) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or payment (whether in cash shares or property) in respect of its outstanding securities without the consent of the Offerorotherwise, which consent may be withheld in the Offeror’s sole and absolute discretion; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of its capital stock or enter into any agreement with respect to the foregoing except as otherwise permitted or contemplated by this Agreementvoting of its capital stock;
(cviii) except for transactions disclosed make any loans, advances, guarantees or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly-owned Subsidiary of the Company), other than in the Disclosure Letterordinary course of business;
(ix) incur any Indebtedness for borrowed money or guarantee any such Indebtedness of another Person, Caza will not, and will not permit or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its subsidiaries toSubsidiaries, directly except for Indebtedness for borrowed money incurred in the ordinary course of business not to exceed $150,000 in the aggregate;
(x) make or indirectly, do any of the following commit to make capital expenditures other than as contemplated by this Agreement or pursuant to commitments in an amount not in excess of $350,000, in the aggregate;
(xi) enter into any Contract that would have been a Company Material Contract had it been entered into prior to the date of this Agreement and disclosed Agreement, other than in the ordinary course of business;
(xii) amend or modify in any material respect or terminate any Company Material Contract, or waive or release any material rights, claims or benefits under any Company Material Contract, in each case, other than in the ordinary course of business;
(xiii) make any material changes with respect to the other party its accounting policies or procedures, except as required by changes in writing Law or otherwise disclosed to the other party, without the prior consent of the other party, such consent not to be unreasonably withheld: GAAP;
(ixiv) sell, pledge, dispose of or encumber settle any assetsProceeding, except in the ordinary course of business; business or where such settlement is covered by insurance or involves only the payment of monetary damages in an amount not more than $200,000 in the aggregate;
(iixv) expend except in the ordinary course of business consistent with past practice, file any material amended Tax Return, make, revoke or commit change any material Tax election in a manner inconsistent with past practice, adopt or change any material Tax accounting method or period, enter into any agreement with a Governmental Entity with respect to expend material Taxes, settle or compromise any amounts examination, audit or other action with a Governmental Entity of or relating to any material Taxes or settle or compromise any claim or assessment by a Governmental Entity in respect of capital expensesmaterial Taxes, or enter into any Tax sharing or similar agreement (excluding certain expenditures which may any commercial contract not primarily related to Taxes), in each case, to the extent such action could reasonably be agreed expected to have any adverse and material impact on Parent;
(xvi) except in the ordinary course of business or pursuant to the terms of any Company Benefit Plan in effect as of the date of this Agreement or as required by Law, (A) increase the annual salary or consulting fees or target annual cash bonus opportunity, of any Company Employee with an annual salary or consulting fees and target annual cash bonus opportunity in excess of $200,000 as of the date of this Agreement, (B) become a party to, from time establish, adopt, amend, or terminate any material Company Benefit Plan or any arrangement that would have been a material Company Benefit Plan had it been entered into prior to timethis Agreement, by (C) take any action to accelerate the Offeror vesting or lapsing of restrictions or payment, or fund or in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Personway secure the payment, corporationof compensation or benefits under any Company Benefit Plan, partnership (D) forgive any loans or issue any loans (other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made than routine travel advances issued in the ordinary course of business) to any Company Employee, make (E) hire any investment, either by purchase employee or engage any independent contractor (who is a natural person) with annual salary or consulting fees and target annual cash bonus opportunity in excess of shares $200,000 or securities, contributions (F) terminate the employment of capital any employee of the Company who would be an “executive officer” (as defined in Rule 3b-7 of the Exchange Act) other than for cause;
(xvii) sell, assign, lease, exclusively license, pledge, encumber, divest, abandon, or allow to subsidiaries)lapse any material Company Intellectual Property, property transfer, or, except other than grants of non-exclusive licenses in the ordinary course of business to customers for use of the products or services of the Company or otherwise in the ordinary course of business;
(xviii) become a party to, purchase establish, adopt, amend, commence participation in or enter into any property collective bargaining or assets other labor union Contract;
(xix) fail to use commercially reasonable efforts to keep current and in full force and effect, or to comply with the requirements of, or to apply for or renew, any permit, approval, authorization, consent, license, registration or certificate issued by any Governmental Entity that is material to the conduct of the business of the Company and its Subsidiaries, taken as a whole;
(xx) file any other individual prospectus supplement or entity; registration statement or consummate any offering of securities that requires registration under the Securities Act or that includes any actual or contingent commitment to register such securities under the Securities Act in the future;
(vxxi) incur any indebtedness for borrowed money fail to maintain, cancel or materially change coverage under, in a manner materially detrimental to the Company or any other of its Subsidiaries, any insurance policy maintained with respect to the Company and its Subsidiaries and their assets and properties;
(xxii) enter into any material liability or obligation or issue new line of business outside of the business currently conducted by the Company and its Subsidiaries as of the date of this Agreement; or
(xxiii) enter into any debt securities or assumeContract, guarantee, endorse or otherwise as an accommodation become responsible forobligated, the obligation of any other individual or entityto do, or make authorize, any loans or advances;of the foregoing.
Appears in 1 contract
Interim Operations. During the period from (a) The Company and STI each covenants and agrees that, after the date of execution of this Agreement hereof and ending on the earlier of prior to the Effective Time and (except for subsection (iii) below which will continue after the termination of this AgreementEffective Time) (unless STI or the Company, except with as the prior written consent of the Offerorcase may be, acting reasonablyshall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise required by law or expressly permitted or specifically contemplated by this Agreement:
(a) Caza covenants and agrees that Agreement or in its business shall be conducted only in the usual and ordinary course of business consistent with past practices, and it shall use all commercially reasonable efforts to maintain and preserve its business, assets and advantageous business relationships. Caza shall consult with the Offeror in respect of its ongoing business and affairs and keep the Offeror apprised of all material developments relating thereto;
(b) Caza shall not, directly respective Disclosure Letter or indirectly, do or permit to occur any of the following:as required by applicable Law):
(i) amend the business of it and its constating documents; Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use all reasonable efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, regulators, distributors, creditors, lessors, employees and business associates;
(ii) issue it shall not (other than on exercise A) amend its certificate of incorporation or surrender of currently outstanding Caza Options), grant, sell or pledge or agree to issue, grant, sell or pledge any securities of Caza, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, securities of Cazaby-laws; (iii) redeem, purchase or otherwise acquire any of its outstanding securities, except as permitted pursuant to the terms thereof or as permitted in accordance with or contemplated by this Agreement; (ivB) split, combine combine, subdivide or reclassify any its outstanding shares of its securitiescapital stock; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or reorganization of Caza; (viC) declare, set aside or pay any dividend payable in cash, stock or other distribution or payment (whether in cash shares or property) property in respect of its outstanding securities without the consent of the Offerorany capital stock, which consent may be withheld or (D) repurchase, redeem or otherwise acquire, except in the Offeror’s sole and absolute discretion; case of STI, in connection with the redemption of outstanding STI Redeemable Warrants or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing except as otherwise permitted or contemplated by this Agreement;
(c) except for transactions disclosed in the Disclosure Letter, Caza will not, and will not permit any of its subsidiaries toSubsidiaries to purchase or otherwise acquire, directly any shares of its capital stock or indirectlyany securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(iii) neither it nor any of its Subsidiaries shall knowingly take or fail to take any action if the result of such taking or failure would be to (A) prevent the Merger from qualifying for "pooling of interests" accounting treatment or as a "reorganization" within the meaning of Section 368(a) of the Code or (B) cause any of its representations and warranties herein to become untrue in any material respect;
(iv) neither it nor any of its Subsidiaries will authorize, or enter into an agreement to do any of the following other than as contemplated foregoing; and
(v) each shall cause its respective Affiliates not to knowingly take or fail to take any action which it has agreed to do, or not do, herein.
(b) STI and the Company agree that any written approval obtained under this Section 6.1 may be relied upon by this Agreement or pursuant to commitments entered into prior to the date of this Agreement and disclosed to the other party in writing if signed by the President or otherwise disclosed to the other party, without the prior consent another executive officer of the other party, such consent not to be unreasonably withheld: (i) sell, pledge, dispose of or encumber any assets, except in the ordinary course of business; (ii) expend or commit to expend any amounts in respect of capital expenses, excluding certain expenditures which may be agreed to, from time to time, by the Offeror in writing, which for greater certainty, shall not be subject to the covenants set forth in this Section 7.1(c); (iii) reorganize, amalgamate, merge or otherwise continue with any other Person, corporation, partnership or other business organization whatsoever; (iv) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or, except for investments in securities made in the ordinary course of business, make any investment, either by purchase of shares or securities, contributions of capital (other than to subsidiaries), property transfer, or, except in the ordinary course of business, purchase any property or assets of any other individual or entity; (v) incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligation of any other individual or entity, or make any loans or advances;.
Appears in 1 contract
