Mutual Covenants. Each of the Parties covenants and agrees that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier: (a) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices; (b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following: (i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber): (A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or (B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries; (ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries; (iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares; (iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities; (v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever; (vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material; (vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or (viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material; (c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to: (i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary; (ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or (iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000; (d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect; (e) it shall: (i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries; (ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and (iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated); (f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement; (g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto; (h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to: (i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts; (ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws; (iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation; (iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation; (v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and (vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder; (vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); (i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors; (j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto; (k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and (l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereon.
Appears in 3 contracts
Samples: Combination Agreement (Acetex Corp), Combination Agreement (Acetex Corp), Combination Agreement (Acetex Corp)
Mutual Covenants. Each of Except as otherwise set forth below, each Party hereby covenants to the Parties covenants and agrees other Party that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier:
(a) except All employees of such Party or its Affiliates or Sublicensees or Third Party subcontractors working under this Agreement will be under appropriate confidentiality provisions at least as previously disclosed protective as those contained in writing tothis Agreement and the obligation to assign all right, title and interest in and to their inventions and discoveries, whether or with not patentable, to such Party as the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practicessole owner thereof;
(b) except as previously disclosed in writing to the other PartyTo its knowledge, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a such Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall will not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issueemploy or use, sellnor hire or use any contractor or consultant that employs or uses, pledgeany individual or entity, leaseincluding a clinical investigator, dispose ofinstitution or institutional review board, encumber debarred or agree to issue, sell, pledge, lease, dispose of or encumber disqualified by the FDA (or permit subject to a similar sanction by any of its Subsidiaries to issueRegulatory Authority outside the United States) or, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend employ any individual who or propose to amend its articles entity that is the subject of an FDA debarment investigation or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase proceeding (or permit similar proceeding by any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by Regulatory Authority outside the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, whichUnited States), in each case, are individually or of subclauses (i) and (ii) in the aggregate material;
(vii) except in the usual, ordinary and regular course conduct of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate materialits activities under this Agreement;
(c) except as may be required under Neither Party nor any of its Affiliates shall, during the Lender ConsentsTerm, without the prior written consent grant any right or license to any Third Party relating to any of the other Party hereto, intellectual property rights it owns or Controls which shall not be unreasonably withheld would conflict with any of the rights or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing licenses granted to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000hereunder;
(d) it EPIZYME shall use its reasonable commercial efforts (taking into account insurance market conditions maintain the EPIZYME In-Licenses, and offerings shall not amend or terminate such agreements, and industry practices) to cause its current insurance (or re-insurance) policies will not to be cancelled or terminated or any of the coverage thereunder to lapsebreach such agreements, except where if such cancellationmodification, termination or lapse breach would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage materially adversely affect CELGENE’s rights under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effectthis Agreement;
(e) it EPIZYME shall:
, upon CELGENE’s request, (i) use its reasonable commercial effortsdesignate those countries in the CELGENE Territory, if any, in which CELGENE desires patent application(s) to be filed pursuant to Section 8.2 of the UNC Agreement, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any actionnotify CELGENE and permit CELGENE to elect to continue rights in non-designated countries in the CELGENE Territory for which UNC has filed patent applications, or permit any of its Subsidiaries if any, pursuant to take any action that would interfere with or be inconsistent with the completion Section 8.4 of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change)UNC Agreement; and
(iiif) promptly notify EPIZYME shall be solely responsible for and shall pay all amounts payable to UNC pursuant to the other Party UNC Agreement, LLS pursuant to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' propertiesLLS Agreement, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior MMRF pursuant to the Effective Date without MMRF Agreement, which payments, at the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication time of such change);
(i) subject payment, shall constitute a fully paid-up Additional Payment and therefore EPIZYME is deemed at the time of such payment to Control the Confidentiality Agreement and Section 5.7corresponding intellectual property licensed to EPIZYME under the UNC Agreement, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereonany.
Appears in 2 contracts
Samples: Collaboration and License Agreement (Epizyme, Inc.), Collaboration and License Agreement (Epizyme, Inc.)
Mutual Covenants. Each of the Parties covenants and agrees that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier:
(a) except as previously disclosed in writing toInternational and Compass shall promptly advise the other party of any change or event having, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each caseinsofar as can reasonably be foreseen, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become have, a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third Material Adverse Effect on such party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to taken as a Party hereto or which would have a material adverse effect on a Party hereto;whole. (b)
(hi) it shall Subject to the terms and conditions herein provided, the parties hereto agree to use all their reasonable commercial best efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action actions and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete consummate and make effective as promptly as practicable the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents transactions contemplated by this Agreement and approvals required the Ancillary Agreements and to be obtained by it from cooperate with each other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any foregoing, including, but not limited to, (A) defending all lawsuits or other legal proceedings of either Party before Governmental Entities in connection with challenging this Agreement, the Amalgamation;
Ancillary Agreements or the transactions contemplated hereby or thereby, (ivB) oppose, attempting to lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties parties to consummate, consummate the transactions contemplated hereby or by the Amalgamation;
hereby, and (vC) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of effecting all necessary filings and applications under submissions of information requested by governmental authorities.
(ii) Without limiting the foregoing, the parties hereto shall, as soon as reasonably practicable, make all applicable Laws required requisite filings with each Governmental Entity in connection with the transactions contemplated herein hereby and take all reasonable action the Ancillary Agreements, including under the HSR Act and the Exon-Florxx Xxxndment, and shall promptly make any further filings requested pursuant thereto or which may be necessary to consummate the transactions contemplated herein. Each party shall furnish to the other, upon request, such information as shall reasonably be required in compliance connection with such Laws; andthe preparation of the requesting party's filings under the HSR Act and the Exon-Florxx Xxxndment.
(liii) it Each of Compass and International shall use promptly provide to the other (or its counsel) copies of all filings (other than those filings, or portions thereof, which the other party has no reasonable commercial efforts to conduct its affairs so that all interest in obtaining in connection with the Offer, the Merger or the transactions contemplated hereby) made with any Federal, state or foreign Governmental Entity in connection with this Agreement and the transactions contemplated hereby.
(iv) Notwithstanding the foregoing or any other provision of this Agreement, (A) neither International nor any of its representations Subsidiaries will, without Compass' prior written consent, agree or commit to any divestiture, hold-separate order or other restriction relating to the Foodservice Business and warranties contained herein shall (B) neither Compass nor any of its Subsidiaries will be true and correct required to agree or commit to any divestiture, hold-separate order or other restriction relating to the Foodservice Business or to any of its existing businesses or any other governmental order or obligation that otherwise imposes any conditions or limitations in all material respects on and as connection with Compass' acquisition of the Effective Date as if made thereonFoodservice Business or its operation of its existing business and operations or the Foodservice Business after the Offer Closing Time.
Appears in 2 contracts
Samples: Merger Agreement (Unique Casual Restaurants Inc), Merger Agreement (Daka International Inc)
Mutual Covenants. Each of the Parties covenants and agrees that, except as contemplated in this Agreement, during the period from the date of this Agreement or the Amalgamation, until the Effective Date earlier of the consummation of the Compulsory Acquisition or Subsequent Acquisition Transaction, as applicable, and the day upon which time that this Agreement is terminated, whichever is earlierterminated in accordance with its terms:
(a) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries subsidiaries to use its all commercially reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder as set forth in Article 6 VI to the extent the same is within its control and to take, or cause to be taken, all other action and to do, or cause to be done, all other things reasonably requested by the other parties and are necessary, proper or advisable under all applicable Laws to complete the AmalgamationOffer and, subject to prior satisfaction of the Minimum Condition, a Compulsory Acquisition or Subsequent Acquisition Transaction, as applicable, and any of the other transactions contemplated hereby, as applicable, including using its commercially reasonable commercial efforts to:
: (i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and registrations, filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation Offer, a Compulsory Acquisition or any Subsequent Acquisition Transaction, as applicable, and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
other transactions contemplated hereby, as applicable; (ivii) oppose, lift or rescind any injunction or restraining order against it or other order or action against it seeking to stop, or otherwise adversely affecting its ability to make and complete the ability Offer, any Compulsory Acquisition or any Subsequent Acquisition Transaction, as applicable, and any of the Parties to consummate, the other transactions contemplated hereby or by the Amalgamation;
hereby, as applicable; and (viii) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate co-operate with the each other Party to this Agreement in connection with the performance by it and its Subsidiaries of its their obligations hereunderhereunder all as subject to the other terms of this Agreement;
(viib) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation making or completion of the Amalgamation (other than Offer, a change of recommendation in accordance with Section 5.4 and the communication of such change)Compulsory Acquisition or any Subsequent Acquisition Transaction, as applicable, except as permitted by this Agreement;
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(lc) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects both on and as of the Effective Expiry Date and the date on which a Compulsory Acquisition or Subsequent Acquisition Transaction, as applicable, is consummated as if made thereonthereon (other than representations and warranties specific to a particular date which shall remain true and correct in all material respects as of that date); and
(d) it shall notify forthwith the other Parties of any breach of a representation, warranty, covenant or condition by it of which it becomes aware or any event occurring subsequent to the date of this Agreement that would render any representation or warranty made by it contained in this Agreement untrue.
Appears in 2 contracts
Samples: Support Agreement (Conoco Canada Resources LTD), Support Agreement (Conoco Inc /De)
Mutual Covenants. Each of the Parties covenants Provided, and agrees that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement it is terminated, whichever is earlierexpressly agreed:
(a) except as previously disclosed Seizure and Bankruptcy That, in writing tocase, without the written consent of Landlord, the Leased Premises shall be used by any person other than the Tenant, or in case the Term or any of the goods and chattels of the Tenant shall be at any time seized or taken in execution or in attachment by any creditor of the Tenant, or if the Tenant shall make any assignment for the benefit of creditors or give any xxxx of sale without complying with the prior Bulk Sales Act (Ontario) or become bankrupt or insolvent, or take the benefit of any Act now or hereafter in force for bankrupt or insolvent debtors or file any proposal or make an assignment for the benefit of creditors or if a receiver is appointed for all or a portion of the Tenant’s property or if any order is made for the winding up of the Tenant, or if the Tenant shall make a sale in bulk, or, if the Tenant abandons or attempts to abandon the Leased Premises, or if the Tenant shall fail to pay any rent or other sums due hereunder which remains unpaid after five (5) days following receipt of written consent ofnotice from the Landlord,, or, if the Tenant shall fail to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by the Tenant, which remain unperformed or unobserved after thirty (30) days following receipt of written notice from the Landlord setting out the term, condition, or covenant the Tenant has failed to observe or perform, or if re-entry is permitted under any other terms of this Lease, then, and in every such case, the other Party heretothen current month’s rent and the next ensuing three months’ rent and additional rent shall immediately become due and payable as accelerated rent, it shalland, at the option of the Landlord this Lease shall cease and determine and the Term hereby demised shall cause each of its Subsidiaries toimmediately become forfeited and void, conduct its and their respective businesses only in, and not take any action except inin which event, the usual, ordinary Landlord may re-enter and regular course take possession of business and consistent with past practices;the Leased Premises as though the Tenant or any occupant or occupants of the Leased Premises was or were holding over after the expiration of the Term without any rights whatsoever.
(b) except as previously disclosed in writing Distress The Landlord waives any right to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except distrain for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereon.rent
Appears in 2 contracts
Samples: Combination Agreement (Fenix Parts, Inc.), Combination Agreement (Fenix Parts, Inc.)
Mutual Covenants. Each of Party hereby covenants to the Parties covenants and agrees other Party that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier:
(a) except all employees of such Party or its Affiliates or Third Party subcontractors working under this Agreement or any Development & Commercialization Agreement, as previously disclosed applicable, will be under appropriate confidentiality provisions at least as protective as those contained in writing tothis Agreement or any Development & Commercialization Agreement, or with the prior written consent of, the other Party hereto, it shallas applicable, and shall cause each of its Subsidiaries tothe obligation to assign all right, conduct its title and interest in and to their respective businesses only ininventions and discoveries, and whether or not take any action except inpatentable, to such Party as the usual, ordinary and regular course of business and consistent with past practicessole owner thereof;
(b) except as previously disclosed in writing to the other Partyits knowledge, such Party will not (i) employ or use, nor hire or use any contractor or consultant that employs or uses, any individual or entity, including a clinical investigator, institution or institutional review board, debarred or disqualified by the FDA (or subject to a similar sanction by any Regulatory Authority outside the United States) or (ii) employ any individual who or entity that is the subject of an FDA debarment investigation or proceeding (or similar proceeding by any Regulatory Authority outside the United States), in paragraph 2 each of Schedule C hereto subclauses (i) and (ii) in the conduct of its activities under this Agreement or except in respect any Development & Commercialization Agreement, as applicable; CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
(c) neither Party nor any of internal transactions involving a its Affiliates shall, during the Term, grant any right or license to any Third Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit relating to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber intellectual property rights it owns or agree to issue, sell, pledge, lease, dispose of or encumber (or permit Controls which would conflict with any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber the rights or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed licenses granted to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate hereunder or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, under any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000Development & Commercialization Agreement;
(d) it such Party and its Affiliates shall use perform its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) activities pursuant to cause its current insurance (or re-insurance) policies not to be cancelled or terminated this Agreement or any of the coverage thereunder to lapseDevelopment & Commercialization Agreement as applicable, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten compliance (and shall ensure compliance by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere subcontractors) in all material respects with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by all applicable Laws, it including GCP, GLP and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control GMP as applicable and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex research and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Lawsdevelopment activities hereunder; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereon.
Appears in 2 contracts
Samples: Master Research and Collaboration Agreement (Jounce Therapeutics, Inc.), Master Research and Collaboration Agreement (Jounce Therapeutics, Inc.)
Mutual Covenants. Each party hereto shall, as promptly as possible, use its reasonable best efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all Governmental Entities that may be or become necessary for the performance of its obligations pursuant to this Agreement. Each party shall cooperate fully with the other parties and their respective affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals. The Buyer agrees to make an appropriate filing pursuant to the HSR Act with respect to the transactions contemplated by this Agreement as promptly as practicable after the date hereof, and in any event not later than the date that is five (5) Business Days after the date of this Agreement, and to supply as promptly as practicable to the appropriate Governmental Entity any additional information and documentary material that may be requested pursuant to the HSR Act. Without limiting the generality of the Parties covenants and agrees thatforegoing, except as contemplated in this Agreement or each of the Amalgamation, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier:
parties hereto shall use reasonable best efforts to (a) except as previously disclosed respond to any inquiries by any Governmental Entity regarding antitrust or other matters with respect to the transactions contemplated by this Agreement; and (b) avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement; and in writing tothe event any order from a Governmental Entity adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement has been issued, to have such order vacated or with lifted; provided, that notwithstanding the prior written consent offoregoing, the other Party hereto, it shall, and this Section 4.1 shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not require Buyer to take any action except inon the part of Buyer that would reasonably result in a requirement for Buyer to dispose of the Purchased Interests or any material asset of the Buyer or that would materially limit the voting rights or the economic benefits of the Purchased Interests. The Buyer and each Seller shall promptly furnish each other, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Partyextent permitted by applicable Laws, including in paragraph 2 with copies of Schedule C hereto written communications received by them, their subsidiaries or except the Company from, or delivered by any of the foregoing to, any Governmental Entity in respect of internal the transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which contemplated by this Agreement. The Buyer shall not be unreasonably withheld or delayedenter into, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries controlled affiliate to issueenter into, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind definitive agreement to acquire any shares of it business or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, limited liability company, joint venture or other business organization or division or acquire, agree to acquire, dispose thereof if the entering into of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay definitive agreement relating to, or make any loan tothe consummation of, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse acquisition would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a (i) impose any material adverse change, in respect of its or any of its Subsidiaries' businesses or delay in the operation obtaining of, or materially increase the risk of its not obtaining, any consent, authorization, order or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and approval of any material Specified Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with necessary to consummate the transactions contemplated by this Agreement or the Amalgamation prior to expiration or termination of any applicable waiting period under the Effective Date without the prior written consentHSR Act, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under materially increase the risk of any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Specified Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining Entity entering an order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede prohibiting the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to transactions contemplated by this Agreement fully informed as to or (iii) prevent the material decisions required to be made or actions required to be taken with respect to the operation consummation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereonby this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Liberty Media Corp), Stock Purchase Agreement (Crestview, L.L.C.)
Mutual Covenants. Each of the Parties covenants Provided, and agrees that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement it is terminated, whichever is earlierexpressly agreed:
(a) except as previously disclosed Seizure and Bankruptcy That, in writing tocase, without the written consent of Landlord, the Leased Premises shall be used by any person other than the Tenant, or in case the Term or any of the goods and chattels of the Tenant shall be at any time seized or taken in execution or in attachment by any creditor of the Tenant, or if the Tenant shall make any assignment for the benefit of creditors or give any xxxx of sale without complying with the prior Bulk Sales Act (Ontario) or become bankrupt or insolvent, or take the benefit of any Act now or hereafter in force for bankrupt or insolvent debtors or file any proposal or make an assignment for the benefit of creditors or if a receiver is appointed for all or a portion of the Tenant’s property or if any order is made for the winding up of the Tenant, or if the Tenant shall make a sale in bulk, or, if the Tenant abandons or attempts to abandon the Leased Premises, or if the Tenant shall fail to pay any rent or other sums due hereunder which remains unpaid after five (5) days following receipt of written consent ofnotice from the Landlord, or, if the Tenant shall fail to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by the Tenant, which remain unperformed or unobserved after thirty (30) days following receipt of written notice from the Landlord setting out the term. condition, or covenant the Tenant has failed to observe or perform, or if re-entry is permitted under any other terms of this Lease, then, and in every such case, the other Party heretothen current month’s rent and the next ensuing three months’ rent and additional rent shall immediately become due and payable as accelerated rent, it shalland, at the option of the Landlord this Lease shall cease and determine and the Term hereby demised shall cause each of its Subsidiaries toimmediately become forfeited and void, conduct its and their respective businesses only in, and not take any action except inin which event, the usual, ordinary Landlord may re-enter and regular course take possession of business and consistent with past practices;the Leased Premises as though the Tenant or any occupant or occupants of the Leased Premises was or were holding over after the expiration of the Term without any rights whatsoever.
(b) except as previously disclosed in writing Distress The Landlord waives any right to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except distress for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereonrent.
Appears in 2 contracts
Samples: Combination Agreement (Fenix Parts, Inc.), Combination Agreement (Fenix Parts, Inc.)
Mutual Covenants. Each of the Parties covenants Provided, and agrees that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement it is terminated, whichever is earlierexpressly agreed:
(a) except as previously disclosed Seizure and Bankruptcy That, in writing tocase, without the written consent of Landlord, the Leased Premises shall be used by any person other than the Tenant, or in case the Term or any of the goods and chattels of the Tenant shall be at any time seized or taken in execution or in attachment by any creditor of the Tenant, or if the Tenant shall make any assignment for the benefit of creditors or give any xxxx of sale without complying with the prior Bulk Sales Act (Ontario) or become bankrupt or insolvent, or take the benefit of any Act now or hereafter in force for bankrupt or insolvent debtors or file any proposal or make an assignment for the benefit of creditors or if a receiver is appointed for all or a portion of the Tenant’s property or if any order is made for the winding up of the Tenant, or if the Tenant shall make a sale in bulk, or, if the Tenant abandons or attempts to abandon the Leased Premises, or if the Tenant shall fail to pay any rent or other sums due hereunder which remains unpaid after five (5) days following receipt of written consent ofnotice from the Landlord, or, if the Tenant shall fail to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by the Tenant, which remain unperformed or unobserved after thirty (30) days following receipt of written notice from the Landlord setting out the term, condition, or covenant the Tenant has failed to observe or perform, or if re-entry is permitted under any other terms of this Lease, then, and in every such case, the other Party heretothen current month’s rent and the next ensuing three months’ rent and additional rent shall immediately become due and payable as accelerated rent, it shalland, at the option of the Landlord this Lease shall cease and determine and the Term hereby demised shall cause each of its Subsidiaries toimmediately become forfeited and void, conduct its and their respective businesses only in, and not take any action except inin which event, the usual, ordinary Landlord may re-enter and regular course take possession of business and consistent with past practices;the Leased Premises as though the Tenant or any occupant or occupants of the Leased Premises was or were holding over after the expiration of the Term without any rights whatsoever.
(b) except as previously disclosed in writing Distress The Landlord waives any right to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except distress for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereonrent.
Appears in 2 contracts
Samples: Combination Agreement (Fenix Parts, Inc.), Combination Agreement (Fenix Parts, Inc.)
Mutual Covenants. Each of the Parties covenants and agrees that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier:
(a) except as previously disclosed in writing The Company and Acquiror shall use their reasonable best efforts not to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not their respective subsidiaries to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to that would, or that could reasonably be expected to, result in (i) any of the entering into or modifying representations and warranties of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as such party set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided this Agreement that are qualified as to the other Party)materiality becoming untrue, incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action such representations and warranties that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement are not so qualified becoming untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
or (iii) the failure to satisfy any of the conditions to the Merger set forth in Article VI.
(b) The Company and Acquiror shall promptly notify advise the other Party to this Agreement party orally and in writing of any material adverse changechange or event having, or any change which which, insofar as can reasonably be foreseen, could reasonably be expected to become a material adverse changehave, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on such party and its subsidiaries taken as a Party hereto;whole. (c)
(hi) it shall Subject to the terms and conditions herein provided, the parties hereto agree to use all their reasonable commercial best efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action actions and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete consummate and make effective as promptly as practicable the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents transactions contemplated by this Agreement and approvals required to be obtained by it from cooperate with each other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any foregoing, including, but not limited to, (A) defending all lawsuits or other legal proceedings of either Party before Governmental Entities in connection with challenging this Agreement, or the Amalgamation;
transactions contemplated hereby, (ivB) oppose, attempting to lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties parties to consummate, consummate the transactions contemplated hereby or by the Amalgamation;
hereby, and (vC) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of effecting all necessary filings and applications submissions of information requested by governmental authorities.
(ii) Without limiting the foregoing, the parties hereto shall, as soon as reasonably practicable, make their filing under all applicable Laws the HSR Act, shall endeavor to obtain early termination of the waiting period thereunder, and shall promptly make any further filings requested pursuant thereto or which may be necessary to consummate the transactions contemplated herein. Each party shall furnish to the other, upon request, such information as shall reasonably be required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; andpreparation of the requesting party's filings under the HSR Act.
(liii) it shall use its reasonable commercial efforts to conduct its affairs so that all Notwithstanding the foregoing or any other provision of this Agreement, (A) neither the Company nor any of its representations subsidiaries will, without Acquiror's prior written consent, agree or commit to any divestiture, hold-separate order or other restriction relating to the Branded Business and warranties contained herein shall (B) neither Acquiror nor any of its subsidiaries will be true and correct required to agree or commit to any divestiture, hold-separate order or other restriction relating to the Branded Business or to any of its existing businesses or any other governmental order or obligation that otherwise imposes any conditions or limitations in all material respects on and as connection with Acquiror's acquisition of the Effective Date as if made thereonBranded Business.
Appears in 2 contracts
Samples: Merger Agreement (Ralcorp Holdings Inc), Merger Agreement (New Ralcorp Holdings Inc)
Mutual Covenants. Each of In addition to the covenants made by the Parties elsewhere in this Agreement, each Party hereby covenants and agrees to the other that, except as contemplated in from the Effective Date until expiration or termination of this Agreement:
8.5.1. it will not (a) take any action that diminishes the rights under the Licensed Cellectis Intellectual Property or Licensed Pfizer Intellectual Property or [***] CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION Developed IP granted or assigned under this Agreement or (b) fail to take any action that is reasonably necessary to avoid diminishing the Amalgamationrights under the Licensed Cellectis Intellectual Property, until the Effective Date Licensed Pfizer Intellectual Property or the day upon which Developed IP granted or assigned to Pfizer or Pfizer’s Affiliates under this Agreement is terminated, whichever is earlier:Agreement;
8.5.2. it will (a) except as previously disclosed in writing to, or with not enter into any Third Party Agreement that adversely affects (i) the prior written consent of, rights granted to the other Party hereto, it shall, and shall cause each of hereunder or (ii) its Subsidiaries to, conduct ability to fully perform its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
obligations hereunder; (b) except as previously disclosed not amend, terminate or otherwise modify any Third Party Agreement (including for Cellectis, the Servier Agreement) or consent or waive rights with respect thereto in writing any manner that (i) adversely affects the rights granted to the other PartyParty hereunder or (ii) its ability to fully perform its obligations hereunder; (c) fulfill, and cause its Affiliates to fulfill, all of their respective obligations under all Third Party Agreements (including for Cellectis Servier Agreements) so as not to be in paragraph 2 breach of Schedule C hereto such agreements; (e) inform Pfizer of existence of all notices received by Cellectis or except its Affiliates relating to any alleged breach or default by Cellectis or its Affiliates under any Third Party Agreement (including Servier Agreement), and all other notices received by Cellectis or its Affiliates in respect connection with any Cellectis Third Party Agreement (including any Disclosed Third Party Agreement) that pertain to the rights granted to Pfizer or Pfizer’s Affiliates hereunder, within [***] after receipt thereof; and (f) in the event that Cellectis does not resolve any such alleged breach or default, notify Pfizer within [***] before the expiration of internal transactions involving a the cure period for such breach of default under such Cellectis Third Party Agreement such that Pfizer is able to cure or otherwise resolve such alleged breach or default, and if Pfizer makes any payments to any Third Party in connection with the cure or other resolution of such alleged breach or default, then Pfizer may credit the amount of such payments against any royalties or other amounts payable to Cellectis pursuant to this Agreement.
8.5.3. it will not enter into or otherwise allow itself or its wholly-owned Subsidiaries Affiliates to be subject to any agreement or among such Subsidiaries, it shall not, without arrangement which limits the prior written consent ownership rights of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares ofAffiliates with respect to, or any options, warrants, calls, conversion privileges or rights limits the ability of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party or its Affiliates to this Agreement and except for stock options issued grant a license, sublicense or access, or provide or provide access or other rights in, to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practiceunder, any intellectual property right or material assets of it or (including any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or byPatent Right, Know-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend How or other distribution payable in cash, stock, property data or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, whichinformation), in each case, are individually that would, but for such agreement or arrangement, be included in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy rights licensed or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing assigned to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or its Affiliates pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change)Agreement; and
(iii) promptly notify the other Party to 8.5.4. it will maintain valid and enforceable agreements with all Persons acting by or on behalf of itself or its Affiliates under this Agreement of any material adverse changewhich require such Persons to assign to it their entire right, title and interest in and to all Patent Rights, Know-How or any change which could reasonably be expected to become a material adverse change, in respect of its other intellectual property rights that are conceived or any of its Subsidiaries' businesses or generated in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereonperforming Research Plan Services.
Appears in 1 contract
Samples: Research Collaboration and License Agreement (Cellectis S.A.)
Mutual Covenants. Each of Except as otherwise set forth below, each Party hereby covenants to the Parties covenants and agrees other Party that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier:
(a) except All employees of such Party or its Affiliates or Sublicensees or Third Party subcontractors working under this Agreement will be under appropriate confidentiality provisions at least as previously disclosed protective as those contained in writing tothis Agreement and the obligation to assign all right, title and interest in and to their inventions and discoveries, whether or with not patentable, to such Party as the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practicessole owner thereof;
(b) except as previously disclosed in writing to the other PartyTo its knowledge, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a such Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall will not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issueemploy or use, sellnor hire or use any contractor or consultant that employs or uses, pledgeany individual or entity, leaseincluding a clinical investigator, dispose ofinstitution or institutional review board, encumber debarred or agree to issue, sell, pledge, lease, dispose of or encumber disqualified by the FDA (or permit subject to a similar sanction by any of its Subsidiaries to issueRegulatory Authority outside the United States) or, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend employ any individual who or propose to amend its articles entity that is the subject of an FDA debarment investigation or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase proceeding (or permit similar proceeding by any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by Regulatory Authority outside the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, whichUnited States), in each case, are individually or of subclauses (i) and (ii) in the aggregate material;
(vii) except in the usual, ordinary and regular course conduct of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate materialits activities under this Agreement;
(c) except as may be required under Neither Party nor any of its Affiliates shall, during the Lender ConsentsTerm, without the prior written consent grant any right or license to any Third Party relating to any of the other Party hereto, intellectual property rights it owns or Controls which shall not be unreasonably withheld would conflict with any of the rights or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing licenses granted to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000hereunder;
(d) it EPIZYME shall use its reasonable commercial efforts (taking into account insurance market conditions maintain the EPIZYME In-Licenses, and offerings shall not amend or terminate such agreements, and industry practices) to cause its current insurance (or re-insurance) policies will not to be cancelled or terminated or any of the coverage thereunder to lapsebreach such agreements, except where if such cancellationmodification, termination or lapse breach would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage materially adversely affect CELGENE’s rights under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effectthis Agreement;
(e) it EPIZYME shall:
, upon CELGENE’s request, (i) use its reasonable commercial effortsdesignate those countries in the CELGENE Territory, if any, in which CELGENE desires patent application(s) to be filed pursuant to Section 8.2 of the UNC Agreement, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any actionnotify CELGENE and permit CELGENE to elect to continue rights in non-designated countries in the CELGENE Territory for which UNC has filed patent applications, or permit any of its Subsidiaries if any, pursuant to take any action that would interfere with or be inconsistent with the completion Section 8.4 of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change)UNC Agreement; and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it EPIZYME shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior be solely responsible for and shall pay all amounts payable to UNC pursuant to the Effective Date without the prior written consentUNC Agreement, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing LLS pursuant to the other Party hereto or as required by applicable Laws, it LLS Agreement and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 MMRF pursuant to the extent MMRF Agreement, which payments, at the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication time of such change);
(i) subject payment, shall constitute a fully paid-up Additional Payment and therefore EPIZYME is deemed at the time of such payment to Control the Confidentiality Agreement and Section 5.7corresponding intellectual property licensed to EPIZYME under the UNC Agreement, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereonany.
Appears in 1 contract
Samples: Collaboration and License Agreement (Epizyme, Inc.)
Mutual Covenants. 10.1 Each of the Parties covenants Big Sky and agrees Pure covenant and agree that, except as contemplated in this Agreement or until the Amalgamation, until earlier of the Effective Date or the day upon date on which this Agreement is terminated, whichever is earlierterminated and unless otherwise contemplated herein:
(a) except other than as previously disclosed in writing to, contemplated herein or with the prior written consent of, as otherwise approved by the other Party heretoParties in writing, it shall, and shall cause each none of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayedthem will, directly or indirectly, including through a Subsidiary, do or permit to occur occur, any of the following:
(i) except for (A) payables existing at the date hereof, and (B) legal, audit and printing costs in connection with the transactions contemplated by this Agreement, including, as applicable, the Pure Meeting, or with the consent of the other Parties, acting reasonably, make, commit, or allow commitments to make, any expenditures exceeding, in the aggregate, $25,000 other than in the ordinary course of business;
(ii) other than securities issuable as contemplated by this Agreement (including securities issuable pursuant to the Financings, the Finders Warrants and the Finder’s Fee) or securities issuable on conversion of convertible securities outstanding as of the date of this Agreement, issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any additional shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practicesecurities of, any material assets of it capital stock or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiariesother securities;
(iii) split, combine or reclassify any of its outstanding shares, Shares or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its sharesany of their respective Shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares their respective Shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate amalgamate, arrange or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoeverPerson;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate materialreduce its stated capital;
(vii) except acquire or agree to acquire (by merger, amalgamation, arrangement, acquisition of securities or assets or otherwise) any Person or division or any assets or properties other than in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; orpractices;
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same other than securities issuable as or less than the principal amount of the facilities renewed or replacedcontemplated by this Agreement, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate materialsecurities;
(cix) enter into or modify any employment, severance, collective bargaining or similar agreements or arrangements with, or grant any bonuses, salary increases, benefit increases, severance or termination pay to, any officers, directors, employees or consultants other than pursuant to agreements and arrangements previously entered into or in accordance with this Agreement;
(x) adopt or amend any bonus, profit sharing, incentive, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(xi) enter into any transaction not in the ordinary course of business or pay any dividends or make any distributions to their respective Shareholders;
(xii) conduct any activity or operations that would be otherwise detrimental to the completion of the Transaction;
(xiii) other than pursuant to commitments entered into prior to the date of the Agreement and disclosed to the other Parties in writing prior to the date hereof, pay, discharge or satisfy any material claims, liabilities or obligations other than in the ordinary course of business consistent with past practices;
(xiv) enter into or close any hedge, swap or other like transaction;
(xv) make any payment to any director, officer or employee outside of their ordinary and usual compensation for services provided;
(xvi) grant any officer, director or employee an increase in compensation in any form or take any action with respect to the amendment or grant of any severance or termination pay policies or arrangements;
(xvii) disclose to any Person other than its officers, directors, key employees and professional advisors, any confidential information relating to the other Parties, except for confidential information required to be disclosed by law or otherwise known to it or the public;
(xviii) take any action that would render, or that reasonably may be expected to render, any material representation or warranty made by it in this Agreement untrue at any time prior to the Transaction becoming effective unless as otherwise contemplated herein; and
(xix) except as may be required under by law or to secure any approvals, consents or authorizations necessary to carry out the Lender Consentstransactions contemplated by this Agreement, and subject always to Section 14.1, issue any public statements with respect to the transactions contemplated by this Agreement without the prior written consent and approval of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, Parties.
(b) Each of Big Sky and shall cause each of its Subsidiaries not toPure shall:
(i) other than use its reasonable commercial efforts to fulfill or cause the fulfillment of the conditions set forth in Articles 5, 6 and 7, as previously disclosed in writing applicable, as soon as reasonably possible to the other Party hereto or extent the fulfillment of the same is within its control;
(ii) conduct its business only in and not take any action except in, the usual, ordinary and regular course of business and consistent with past practice or pursuant and not take any action which may reasonably be expected to existing result in a Material Adverse Change, including, without limiting the generality of the foregoing, the entering into of employment, pension, supplemental pension, termination, compensation consultancy or severance agreements or other arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not directors or officers without the other Parties’ written consent or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); oras contemplated herein;
(iii) except as set forth maintain insurance on and in respect of all its assets in like kind to, and in an amount not less than the Parties' previously approved respective capital budgets (copies of which have been previously provided amount of, insurance with respect to its assets in effect on the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000date hereof;
(div) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective its business organizations organization and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiariesit;
(iiv) not take any action, or permit any provide to the other Parties reports on its operations and affairs as may be reasonably requested from time to time by the other Parties;
(vi) cooperate with the other Parties to enable an orderly integration of its Subsidiaries to take any action that would interfere business with or be inconsistent with the completion those of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to other Parties after the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); andDate;
(iiivii) promptly notify the other Party to this Agreement Parties orally and in writing of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' propertiesMaterial Adverse Change, and of any material Governmental Entity governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated)) which is material to it;
(fviii) except make available and cause to be made available to the other Parties, their respective agents and advisors, as the other Parties may reasonably request, all documents and agreements (including without limitation, any correspondence between it and its advisors, or any governmental body and all minute books) and access to its premises, records, computer systems and employees in connection any way relating to or affecting its financial status and such other documents or agreements as may be necessary to enable the other Parties to verify the truth of its representations and warranties herein and compliance by it with the Lender Consentsterms and conditions hereof, except where it shall not settle is contractually precluded from making such document or compromise any claim brought by any presentagreement available, former or purported holder of any of its securities in connection and cooperate with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of other Parties in securing access for the other Party Parties to this Agreementany such documentation not in its possession or under its control;
(gix) except if applicable, conduct the Pure Meeting in the usualcompliance with its articles and any instrument governing such meeting, ordinary and regular course of business and consistent with past practiceas otherwise required by Applicable Laws, or except as previously disclosed in writing to the other Party hereto or as required by applicable Lawsalternatively, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations take such steps as are required to be obtained obtain the approval of its Shareholders by it under any applicable Lawsa unanimous consent resolution in writing in accordance with Applicable Law and its articles;
(iiix) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required if applicable, solicit proxies to be effected by it voted at the Pure Meeting in connection with favour of the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamationmatters to be considered at such meeting;
(ivxi) opposeif applicable, lift or rescind any injunction or restraining order or prepare (in consultation with the other order or action seeking Parties), file and distribute to stopits Shareholders in a timely and expeditious manner, the notice of meeting and information circular for the Pure Meeting, as required by law, in all jurisdictions where the same is required, complying in all material respects with all Applicable Laws, or otherwise adversely affecting alternately, prepare (in consultation with the ability other Parties) and distribute to its Shareholders in a timely and expeditious manner such materials as are required to obtain the approval of the Parties to consummate, the transactions contemplated hereby or its Shareholders by the Amalgamationa consent resolution in writing in accordance with Applicable Law and its articles;
(vxii) fulfill indemnify and save harmless the other Parties and the respective directors, officers and agents of the other Parties from and against any and all conditions liabilities, claims, demands, losses, costs, damages and satisfy all expenses (excluding any loss of profits or consequential damages) to which the other Parties, or any director, officer or agent thereof, may be subject or which the other Parties, or any director, officer or agent thereof, may suffer or incur, whether under the provisions of this Agreement and any statute or otherwise, in any way caused by, or arising, directly or indirectly, from or in consequence of any Misrepresentation or alleged Misrepresentation in the AmalgamationBig Sky Listing Statement or in the notice of meeting for the Pure Meeting or other materials delivered to its Shareholders to obtain their approval, including delivery of other than Misrepresentations respecting the certificates of other Parties, their respective officers contemplated business and assets contained in information provided to it by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement Parties for inclusion in connection with the performance by it of its obligations hereundersuch materials;
(viixiii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (make other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws Canadian federal and provincial laws and regulations required on its part in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; andlaws and regulations;
(lxiv) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereonthereon except as otherwise contemplated herein.
10.2 Subject to the provisions of Sections 10.3 and 10.4, none of Big Sky and Pure shall, directly or indirectly, through officers, directors, employees, Affiliates, representatives, advisors, agents, investment bankers, consultants or otherwise, take any action to solicit, initiate, encourage, or participate in any discussions or negotiations with any Person, provide any non-public information to any Person or otherwise assist or cause or facilitate anyone else to solicit, initiate, encourage, or participate in any discussions or negotiations with any Person, or provide any nonpublic information to any Person or otherwise assist with respect to: (A) any transaction that may constitute a Take-over Proposal; or (B) any other transaction, the consummation of which would, or could reasonably be expected to, impede, interfere with, prevent or delay the transactions contemplated by this Agreement or which would or could reasonably be expected to reduce the benefits to the other Parties under this Agreement and will not waive, or otherwise forbear in the enforcement of, or enter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any of its rights or other benefits under any confidentiality agreements existing as of the date hereof, including, without limitation, any standstill provisions thereunder; provided, however, that subject to Sections 10.3 and 10.4 hereof, the board of directors of any Party may consider, negotiate, accept, approve or recommend to its Shareholders, or enter into an agreement, understanding or arrangement in respect of, an unsolicited Superior Proposal (as defined herein).
10.3 Prior to considering, negotiating, accepting, approving or recommending to its Shareholders or entering into an agreement, understanding or arrangement in respect of, an unsolicited Superior Proposal, each Party shall:
(a) advise the other Parties in writing of the existence and terms of any such offer or proposal and provide copies thereof to the other Parties as soon as reasonably possible following its receipt thereof;
(b) provide copies of any information provided to the Person making the Superior Proposal, which has not already been made available to the other Parties; and
(c) if requested by any of the other Parties, prior to accepting, recommending, approving or entering into any agreement to implement the Superior Proposal, to negotiate in good faith with the other Parties and their respective legal and financial advisors for a period of up to three (3) Business Days to permit the other Parties, if practicable, to propose such adjustments in the terms and conditions of this Agreement as may be necessary or advisable such that, in the bona fide opinion of such Party’s board of directors, the Take- Over Proposal is no longer a Superior Proposal. In the event that the other Parties propose to so amend this Agreement to provide substantially equivalent or superior value to that provided under the Superior Proposal, no Party shall accept, recommend, approve or enter into any agreement to implement the Superior Proposal.
10.4 Subject to compliance with Section 10.3 hereof, if prior to the completion of the Transaction, a bona fide Take-Over Proposal is proposed, offered or made to a Party or to a Party’s Shareholders which, in the bona fide opinion of a Party’s board of directors (after receiving legal and financial advice) would result in a financially superior transaction, directly or indirectly, for its Shareholders than that contemplated by the Transaction (any such Take- Over Proposal being referred to herein as a “Superior Proposal”), a Party’s board of directors may withdraw, modify or change its approval of the transactions contemplated by this Agreement if, in the opinion of such board of directors acting reasonably and upon the written advice of its legal counsel, such withdrawal, modification or change is required by the fiduciary duties of its board of directors under Applicable Laws.
Appears in 1 contract
Samples: Amalgamation Agreement
Mutual Covenants. Each of In addition to the covenants made by the Parties elsewhere in this Agreement, each Party hereby covenants and agrees to the other that, except as contemplated in from the Effective Date until expiration or termination of this Agreement:
8.5.1 it will not (a) take any action that diminishes the rights under the Licensed Cellectis Intellectual Property or Licensed Pfizer Intellectual Property or Developed IP granted or assigned under this Agreement or (b) fail to take any action that is reasonably necessary to avoid diminishing the Amalgamationrights under the Licensed Cellectis Intellectual Property, until the Effective Date Licensed Pfizer Intellectual Property or the day upon which Developed IP granted or assigned to Pfizer or Pfizer’s Affiliates under this Agreement is terminated, whichever is earlier:Agreement; [***] = CONFIDENTIAL TREATMENT REQUESTED
8.5.2 it will (a) except as previously disclosed in writing to, or with not enter into any Third Party Agreement that adversely affects (i) the prior written consent of, rights granted to the other Party hereto, it shall, and shall cause each of hereunder or (ii) its Subsidiaries to, conduct ability to fully perform its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
obligations hereunder; (b) except as previously disclosed not amend, terminate or otherwise modify any Third Party Agreement (including for Cellectis, the Servier Agreement) or consent or waive rights with respect thereto in writing any manner that (i) adversely affects the rights granted to the other PartyParty hereunder or (ii) its ability to fully perform its obligations hereunder; (c) fulfill, and cause its Affiliates to fulfill, all of their respective obligations under all Third Party Agreements (including for Cellectis Servier Agreements) so as not to be in paragraph 2 breach of Schedule C hereto such agreements; (e) inform Pfizer of existence of all notices received by Cellectis or except its Affiliates relating to any alleged breach or default by Cellectis or its Affiliates under any Third Party Agreement (including Servier Agreement), and all other notices received by Cellectis or its Affiliates in respect connection with any Cellectis Third Party Agreement (including any Disclosed Third Party Agreement) that pertain to the rights granted to Pfizer or Pfizer’s Affiliates hereunder, within [***] after receipt thereof; and (f) in the event that Cellectis does not resolve any such alleged breach or default, notify Pfizer within [***] before the expiration of internal transactions involving a the cure period for such breach of default under such Cellectis Third Party Agreement such that Pfizer is able to cure or otherwise resolve such alleged breach or default, and if Pfizer makes any payments to any Third Party in connection with the cure or other resolution of such alleged breach or default, then Pfizer may credit the amount of such payments against any royalties or other amounts payable to Cellectis pursuant to this Agreement.
8.5.3 it will not enter into or otherwise allow itself or its wholly-owned Subsidiaries Affiliates to be subject to any agreement or among such Subsidiaries, it shall not, without arrangement which limits the prior written consent ownership rights of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares ofAffiliates with respect to, or any options, warrants, calls, conversion privileges or rights limits the ability of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party or its Affiliates to this Agreement and except for stock options issued grant a license, sublicense or access, or provide or provide access or other rights in, to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practiceunder, any intellectual property right or material assets of it or (including any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or byPatent Right, Know-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend How or other distribution payable in cash, stock, property data or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, whichinformation), in each case, are individually that would, but for such agreement or arrangement, be included in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy rights licensed or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing assigned to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or its Affiliates pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change)Agreement; and
(iii) promptly notify the other Party to 8.5.4 it will maintain valid and enforceable agreements with all Persons acting by or on behalf of itself or its Affiliates under this Agreement of any material adverse changewhich require such Persons to assign to it their entire right, title and interest in and to all Patent Rights, Know-How or any change which could reasonably be expected to become a material adverse change, in respect of its other intellectual property rights that are conceived or any of its Subsidiaries' businesses or generated in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereonperforming Research Plan Services.
Appears in 1 contract
Samples: Research Collaboration and License Agreement (Allogene Therapeutics, Inc.)
Mutual Covenants. Each From the date of this Agreement until the earlier of the Parties covenants and agrees thatEffective Time or the termination of this Agreement, except as expressly contemplated in or permitted by this Agreement or (including the Amalgamationprovisions of Section 8.9 of this Agreement, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier:
(ai) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, SCB (which consent shall not be unreasonably withheld or delayed), directly or indirectlyFLB will not, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any and will cause each of its Subsidiaries to issuenot to, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, FLB (which consent shall not be unreasonably withheld or delayed), it shall SCB will not, and shall will cause each of its Subsidiaries not to:
(a) take any action that would (i) other than as previously disclosed in writing adversely affect the ability of any Party to obtain any necessary approvals of any Regulatory Authorities required for the other Party hereto transactions contemplated hereby or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing adversely affect its ability to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or perform any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options material obligations under the AT Plastics Option Plan upon the Amalgamation becoming effective)this Agreement; or
(iiib) except as set forth in on Section 7.1(b) of such Party's Disclosure Memorandum, enter into or amend (except as may be required by applicable law, to satisfy contractual obligations existing as of the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party)date hereof or amendments which, incur or commit to capital expenditures prior to the Effective Date either individually or in the aggregate exceeding $250,000;aggregate, would not reasonably be expected to result in a material liability to FLB, SCB or their respective Subsidiaries) any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or other employees, including, without limitation, taking any action that accelerates the vesting or exercise of any benefits payable thereunder; or
(c) amend its Articles of Incorporation or Bylaws, other than an amendment to SCB's Articles of Incorporation to increase its authorized common stock from 10,000,000 shares to 12,000,000 shares; or
(d) it shall use implement or adopt any change in its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (accounting principles, practices or re-insurance) policies not to methods, other than as may be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten required by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:GAAP; or
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to knowingly take any action that would, or would interfere with be reasonably likely to, prevent or be inconsistent with impede the completion Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the transactions contemplated hereunder Code; or would render, (ii) knowingly take any action that is intended or that is reasonably may be expected likely to render, result in (A) any representation or warranty made by it of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Date if then made Time, (other than B) any of the conditions to the Merger set forth in Article 9 not being satisfied or (C) a change material violation of recommendation in accordance with Section 5.4 and the communication any provision of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse changeexcept, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' propertieseach case, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same as may be contemplated);required by applicable law; or
(f) except in connection with the Lender Consents, it shall not settle agree or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated commit to do anything prohibited by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereon7.1.
Appears in 1 contract
Samples: Merger Agreement (First National Bankshares of Florida Inc)
Mutual Covenants. Each of the Parties covenants and agrees that, except as contemplated in this Agreement, during the period from the date of this Agreement or the Amalgamation, until the earlier of the Effective Date or Time and the day upon which time that this Agreement is terminatedterminated in accordance with its terms, whichever is earlierit shall:
(a) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the all conditions precedent to its obligations hereunder set forth in Article 6 this Agreement, carry out the terms of the Interim Order and the Final Order to the extent applicable to it and comply promptly with all requirements imposed by Law on it with respect to this Agreement and the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contractsArrangement;
(iib) obtain use all necessary consentsreasonable commercial efforts, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection upon reasonable consultation with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) other Party, to oppose, lift or rescind any injunction or injunction, restraining order or other order order, decree or action ruling seeking to stoprestrain, enjoin or otherwise prohibit or adversely affect the consummation of the Arrangement and defend, or otherwise adversely cause to be defended, all lawsuits or other legal, regulatory or other proceedings challenging or affecting this Agreement or the ability consummation of the Parties to consummate, the transactions contemplated hereby hereby; provided that, reasonable commercial efforts shall not require the Purchaser Parties or by their affiliates to proffer, negotiate, effect or agree to, the Amalgamationsale, divestiture, transfer or other disposition of any properties, assets, rights, interests, operations, businesses or their respective assets; or to accept any other conditions, restrictions, limitations or agreements affecting the Purchaser Parties’ or their affiliates’ freedom of action with respect to, or their respective ability to retain, any properties, assets, rights, interests, operations, businesses, the Common Shares, the Preferred Shares, the Company Assets or the Company Investee Assets;
(vc) fulfill all conditions and satisfy all provisions promptly notify the other Party in writing of (i) any notice or other communication from any person (other than Governmental Entities in connection with Regulatory Approvals) alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such person (or another person) is or may be required in connection with this Agreement or the Arrangement (and the Amalgamationresponse thereto from such Party, including delivery of its subsidiaries or its representatives), (ii) any material communication from any Governmental Entity in connection with the certificates of their respective officers transactions and Regulatory Approvals contemplated by Section 6.2 this Agreement (and Section 6.3the response thereto from such Party, its subsidiaries or its representatives) or (iii) any Legal Actions threatened or commenced against or otherwise affecting such Party or any of its subsidiaries that are related to the transactions contemplated by this Agreement; and
(vid) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any reasonable commercial action, or permit any action to be taken or reasonable commercial action to not be taken, which is inconsistent with this Agreement or which would reasonably be expected to prevent, materially impede or significantly impede delay the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made Arrangement or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as hereby or which would diminish the value of the Effective Date Company or the Company Assets in any way, in each case, except as if made thereonpermitted by this Agreement.
Appears in 1 contract
Mutual Covenants. Each Except as contemplated in, and conducted in accordance with the terms and conditions of, this Agreement and the Plan of the Parties Arrangement, each party covenants and agrees that, except as contemplated in this Agreement or the Amalgamation, that until the Effective Date or the day upon which this Agreement is terminatedDate, whichever is earlier:
(a) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the followingparty:
(ia) issue, sell, pledge, lease, dispose of, encumber it will not declare or agree to issue, sell, pledge, lease, dispose of pay any dividends or encumber (or permit make any distribution of its Subsidiaries properties or assets to issue, sell, pledge, lease, dispose of, encumber its shareholders or agree to issue, sell, pledge, lease, dispose of purchase or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire retire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiariescapital stock;
(iib) it will not alter or amend or propose authorize any alteration or amendment to amend its articles constating documents or by-laws or those bylaws as they exist at the date of any of its Material Subsidiariesthis Agreement;
(iiic) it will not split, combine consolidate, exchange or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(vd) reorganize, amalgamate or merge it or will not engage in any of its Material Subsidiaries with any other person, corporation, partnership business enterprise or other business organization whatsoeveractivity other than in the ordinary course of business;
(vie) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, it will not acquire or agree to acquire, dispose by amalgamating, plan of arrangement, merging, consolidating or agree to dispose entering into a business combination with or purchasing or leasing substantially all of the assets or otherwise of any person, business or undertaking or any corporation, partnership, joint venture association or other business organization or division thereof;
(f) it will not sell, lease, transfer, mortgage or acquire, agree to acquire, otherwise dispose of or encumber any of its property or assets, real or personal, or agree to dispose of any assets, which, in each case, are individually or in the aggregate materialsame;
(viig) except it will not resolve or propose that it be wound-up, dissolved, liquidated, amalgamated or merged into, appoint or agree to the appointment of a liquidator, receiver or trustee in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy bankruptcy for it or settle any claims consent to an order by a court for its winding-up or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate materialdissolution;
(ch) except it will not take any action or fail to take any action which would cause any of the conditions precedent set forth in Article 5 not to be satisfied;
(i) it will continue to furnish to the other party and to its accountants, counsel and other representatives such information relating to the financial condition, business, operations, properties, assets and affairs of it as may be reasonably requested by the other party, which information shall be true, correct and complete in all material respects and will not contain an untrue statement of any material fact or omit to state any material fact required under to be stated therein or necessary in order to make the Lender Consents, without statements therein not misleading in the prior written consent light of the circumstances in which they are made;
(j) it will notify the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not toparty in writing:
(i) other than as previously disclosed in writing to promptly after the other Party hereto or in the usualoccurrence thereof of any material adverse change (actual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements withanticipated, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;threatened) with respect to it; and
(ii) other than promptly after the occurrence, or failure to occur, of any such event, of information of which it becomes aware with respect to any event which, if known as previously of the date of this Agreement, would have been required to be disclosed in writing to the other Party hereto party or which would have been likely to cause any of its representations or warranties in this Agreement to be untrue or incorrect or result in the usualfailure to comply with or satisfy any covenant, ordinary condition or agreement to be complied with or satisfied by any party herein provided, however, that no such notification shall affect the representations or warranties of the parties or the conditions to the obligations of the parties herein;
(k) it will do or refrain from doing all acts and regular course of business things in order to ensure that the representations and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policieswarranties in Section 3.1, in the case of employees Verb, and 3.2, in the case of it or any Ayotte, remain true and correcx xx xf the Effective Date as if such representations and warranties were made at and as of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); orsuch date;
(iiil) except as it will use commercially reasonable efforts (including co-operating with the other party where applicable) to cause each of the conditions precedent set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided Article 5 hereof to the other Party), incur be complied with on or commit to capital expenditures prior to before the Effective Date individually or in the aggregate exceeding $250,000Date;
(dm) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or if for any of the coverage thereunder to lapsereason whatsoever, except where such cancellation, termination or lapse would not individually or in the aggregate have by reason of a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten breach by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each either party of its Subsidiaries to use its reasonable commercial effortsobligations hereunder, to preserve intact their respective business organizations and goodwillthe Arrangement cannot be completed on the basis contemplated by this Agreement, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent will negotiate in good faith with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected other party to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with restructure the transactions contemplated by this Agreement or and the Amalgamation prior Plan of Arrangement on a mutually acceptable basis with a view to the Effective Date without completion of a transaction on as similar a basis to the prior written consentArrangement as is possible in the circumstances on or before June 30, not to 2002 or such other date as may be unreasonably withheld or delayed, of agreed upon between the other Party to this Agreementparties;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(hn) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) will cooperate with the other Party party in preparing the Circular as a joint management information circular with respect to this Agreement the Verb Meeting and the Ayotte Meeting and the informaxxxx xelating to such party in connection with the performance by Circular will not contain an untrue statement of a material fact and will not omit to state a material fact that is necessary to make a statement not misleading in the light of the circumstances in which it of its obligations hereunderis made;
(viio) it shall not take any actionwill use its best efforts to ensure that the Verb Meeting and the Ayotte Meeting are held on the xxxx date;
(p) it will cooperate and use its respective best efforts to obtain, refrain before the Effective Date, all authorizations, waivers, exemptions, consents, orders and other approvals from taking any actiondomestic or foreign courts, governmental or permit any action to be taken regulatory agencies, boards, commissions or not takenother authorities, inconsistent with this Agreement or which would reasonably be expected to significantly impede shareholders and third parties as are necessary for the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change)transactions contemplated hereby;
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(jq) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with will support the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; the Plan of Arrangement and
(l) , without limiting the generality of the foregoing, it shall use its reasonable commercial efforts not act or fail to conduct its affairs so act in any way that all might reasonably be expected to discourage Verb Shareholders from voting in favour of its representations the Verb Resolution or that might encourage Verb Shareholders to vote against the Verb Resolution or that might be expected to discourage Ayotte Shareholders from votinx xx xavour of the Ayotte Resolutions or xxxx might encourage Ayotte Shareholders to vote agxxxxx the Ayotte Resolutions anx xxx public comment (whether oral or written) shall be consistent with and warranties contained supportive of the Arrangement provided, however, that nothing herein shall be true and correct prevent either party from making any written disclosure to comply with any legal or regulatory requirement so long as such disclosure is made in all material respects on and as of the Effective Date as if made thereonaccordance with Section 7.5.
Appears in 1 contract
Mutual Covenants. Each of the Parties party hereto respectively covenants and agrees that, except as contemplated in this Agreement or that from the Amalgamation, date hereof until the Effective Closing Date or the day upon which of this Agreement Agreement, unless express written permission is terminated, whichever is earlier:
(a) except as previously disclosed in writing to, or with the prior written consent of, obtained from the other Party party hereto, it shall, and shall cause each of its Subsidiaries to, :
i) conduct its business and their respective businesses only inoperations pursuant to current business plans and policies, and not take any action except in, outside the usual, normal and ordinary and regular course of business; ii) not make any material termination, breach or change of any contract, lease, license or other material commitment which would result in a material adverse effect on the business and consistent with past practices;
(bor assets of the party; iii) except as previously disclosed in writing not declare any cash dividend or stock dividend, nor make any other distribution to shareholders of any kind by way of liquidation, partial distribution redemption or otherwise; iv) not make any issuance or grant of stock options, warrants, capital stock or convertible debt without the express consent of the other Partyparty; v) not pay any bonuses or salary increases or extraordinary compensation, including in paragraph 2 through cash or otherwise, to any officers, directors, shareholders, or enter into any written binding employment contracts with any of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiariesthem, it shall not, without unless with the prior express written consent of the other Party heretoparty; vi) not make any loan, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend advance or other distribution payable in cashmaterial benefit with or to any officer, stockdirector, property shareholder, affiliate or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, associate without the prior express written consent of the other Party hereto, which shall party; vii) not be unreasonably withheld make any purchase of real or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to material personal property outside the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employmentwithout the written consent of the other party hereto; viii) not amend any bylaws, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay tocorporate articles, or make any loan tochanges in accounting or financial practices, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing is contemplated by the terms of this Agreement; ix) not incur any debt of a material amount unless within the ordinary course of business or with the consent of the other party hereto; x) Each party hereto warrants and covenants hereby that any information or data supplied to the other Party party hereto or from the date hereof until the Closing Date shall not contain any statement which, at the time and in the usuallight of the circumstances under which it is offered or made, ordinary and regular course of business and consistent with past practice is false or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or misleading with respect to any increase material fact; and xi) the representations and warranties of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it party hereto contained in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Closing Date with the same force and effect as if though such representations and warranties had been made thereonon and as of the Closing Date. The representations and warranties and covenants of each party hereto contained in this Agreement in the foregoing Sections 14 and 15 hereof only relate to the respective business, assets, operations, liabilities and financial condition and other affairs of each such party, and neither party hereto is making any representations, warranties or covenants in respect to the status, assets, liabilities, operations, business, financial condition or other affairs of the other party hereto. All representations and warranties by each party hereto in this Agreement shall survive the Closing Date hereof and the consummation of the transactions hereby for a period of one year after such Closing Date; provided, however, that no officer, director or shareholder of either party hereto shall be personally liable for any damages or expenses resulting from the inaccuracy or incompleteness of any such representation or warranty which is made by one party hereto in good faith to the other party hereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Eagle Motorcycle Co Inc)
Mutual Covenants. Each of the Parties covenants and agrees that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier:
(a) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:HSR Act Filings; Reasonable Efforts; Notification.
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose Each of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
Cardinal Health and ALARIS shall (A) any shares of, make or any options, warrants, calls, conversion privileges or rights cause to be made the filings required of any kind to acquire any shares of it such party hereto or any of its Subsidiaries, except pursuant to subsidiaries or affiliates under the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise HSR Act with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement as promptly as practicable and in any event within seven business days after the date of this Agreement, (B) comply at the earliest practicable date with any request under the HSR Act for additional information, documents, or other materials received by such party hereto or any of its subsidiaries from the United States Federal Trade Commission or the Amalgamation United States Department of Justice or any other Governmental Authority in respect of such filings or such transactions, and (C) cooperate with the other party in connection with any such filing (including, with respect to the party hereto making a filing, providing copies of all such documents to the non-filing party and its advisors prior to the Effective Date without the prior written consentfiling and, not if requested, to be unreasonably withheld accept all reasonable additions, deletions or delayed, changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry of the any such agency or other Party Governmental Authority under any Antitrust Laws (as defined in Section 6.1(a)(ii)) with respect to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, any such filing or except as previously disclosed in writing to the other Party any such transaction. Each party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial best efforts to satisfy (furnish to each other all information required for any application or cause other filing to be made pursuant to any Applicable Laws in connection with the satisfaction of) Merger and the conditions precedent to its obligations hereunder set forth other transactions contemplated by this Agreement. Each party hereto shall promptly inform the other parties hereto of any communication with, and any proposed understanding, undertaking, or agreement with, any Governmental Authority regarding any such filings or any such transaction. No party hereto shall independently participate in Article 6 any meeting, or engage in any substantive conversation, with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the other party hereto prior notice of the meeting and, to the extent permitted by such Governmental Authority, the same opportunity to attend and/or participate. The parties hereto will consult and cooperate with one another, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to the HSR Act or other Antitrust Laws. Each of the parties hereto will use all reasonable best efforts to secure termination of any waiting periods under the HSR Act and obtain the approval of any other Governmental Authority for the transactions contemplated by this Agreement. Cardinal Health and ALARIS may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.1 “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is within obtained in advance from the source of the materials (Cardinal Health or ALARIS, as the case may be) or its control legal counsel.
(ii) Each of Cardinal Health and ALARIS shall use all reasonable efforts to resolve such objections, if any, as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement under the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other United States federal or state or foreign statutes, rules, regulations, orders, decrees, administrative or judicial doctrines or other laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, “Antitrust Laws”). In connection therewith, if any Action is instituted (or threatened to be instituted) challenging any of the transactions contemplated by this Agreement as violative of any Antitrust Laws, each of Cardinal Health and ALARIS shall cooperate and use all reasonable efforts vigorously to contest and resist any such Action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction or other order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal unless, by mutual agreement, Cardinal Health and ALARIS decide that litigation is not in their respective best interests. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.1(a) shall limit a party hereto’s right to terminate this Agreement pursuant to Section 8.1, so long as such party hereto has, up to then, complied in all material respects with its obligations under this Section 6.1(a). Each of Cardinal Health and ALARIS shall use all reasonable efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to the transactions contemplated by this Agreement as promptly as possible after the execution of this Agreement.
(iii) Each of the parties hereto agrees to use all reasonable efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all other things necessary, proper or advisable under all applicable Laws to complete consummate and make effective, in the Amalgamationmost expeditious manner reasonably practicable, the Offer, the Merger and the transactions contemplated by this Agreement, including using its reasonable commercial efforts to:
(iA) obtain the obtaining of all other necessary actions or nonactions, waivers, consents consents, licenses, permits, authorizations, orders and approvals required to be obtained by it from Governmental Authorities and the making of all other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by (including other filings with Governmental Entities required to be effected by it in connection with Authorities, if any), (B) the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making obtaining of all necessary filings and applications under all applicable Laws consents, approvals or waivers from third parties related to or required in connection with the Offer and the Merger that are necessary to consummate the Offer and the Merger and the transactions contemplated herein by this Agreement or required to prevent a Material Adverse Effect on ALARIS from occurring prior to or after the Effective Time, and take (C) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. Additionally, each of Cardinal Health and ALARIS shall use all reasonable action necessary efforts to be fulfill all conditions precedent to the Offer (as set forth in compliance with such Laws; andAnnex A) and to the Merger.
(liv) it shall use its reasonable commercial efforts Notwithstanding anything to conduct its affairs so that all the contrary in this Agreement, (A) neither Cardinal Health nor any of its representations and warranties contained herein subsidiaries shall be true and correct in all material respects on and required to hold separate (including by trust or otherwise) or to divest any of their respective businesses or assets, or to take or agree to take any action or agree to any limitation with respect to the ownership or holding of any of their respective businesses or assets, (B) prior to the Effective Time, neither ALARIS nor any of its subsidiaries shall be required to hold separate (including by trust or otherwise) or to divest any of their respective businesses or assets, or to take or agree to take any other action or agree to any limitation with respect to the ownership or holding of any of their respective businesses or assets, (C) neither any party hereto nor their respective subsidiaries shall be required to take any action that would, or would reasonably be expected to, substantially impair the benefits expected, as of the Effective Date date of this Agreement, to be realized by Cardinal Health from consummation of the Offer and the Merger, (D) neither Cardinal Health nor Subcorp shall be required to waive any of the conditions of the Offer set forth in Annex A, and (E) no party hereto shall be required to waive any of the conditions to the Merger set forth in Article VII as if made thereonthey apply to such party.
Appears in 1 contract
Mutual Covenants. Each From the date of this Agreement until the earlier of the Parties covenants and agrees thatEffective Time or the termination of this Agreement, except as expressly contemplated in by this Agreement or the AmalgamationAgreement, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier:
(ai) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, Promistar (which consent shall not be unreasonably withheld or delayed), directly or indirectlyFNB will not, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any and will cause each of its Subsidiaries to issuenot to, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, FNB (which consent shall not be unreasonably withheld or delayed), it shall Promistar will not, and shall will cause each of its Subsidiaries not to:
(a) take any action that would (i) other than adversely affect the ability of any Party to obtain any necessary approvals of any Regulatory Authorities required for the transactions contemplated hereby or (ii) adversely affect its ability to perform any of its material obligations under this Agreement; or
(b) except as previously disclosed set forth on SECTION 7.1(B) of such Party's Disclosure Memorandum, (i) enter into or amend any written employment, severance or similar agreements or arrangements with any of its directors or executive officers, (ii) enter into or amend any material written employment, severance or similar agreements or arrangements with any of its officers or employees, or (iii) grant any salary or wage increase or increase any employee benefit (including incentive or bonus payments), except for (A) normal individual increases in writing compensation to the other Party hereto or employees in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(iiB) other than changes as previously disclosed in writing are provided for herein or as may be required by law or to satisfy contractual obligations existing as of the other Party hereto date hereof or in the usual, ordinary and regular course additional grants of business and awards to newly hired employees consistent with past practice or practice; provided, however, that each officer and employee of Promistar entitled, pursuant to existing employmenteither Promistar's Key Employee Incentive Compensation Plan of 1996 or Promistar's Annual Management Incentive Plan, pensionto receive a bonus at the end of the fiscal year in which the Closing occurs, supplemental pension, termination, compensation arrangements or policies, in shall be paid a pro rata portion of such bonus at the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective)Effective Time; or
(iiic) except as set forth in on SECTION 7.1(C) of such Party's Disclosure Memorandum, enter into or amend (except as may be required by applicable law, to satisfy contractual obligations existing as of the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party)date hereof or amendments which, incur or commit to capital expenditures prior to the Effective Date either individually or in the aggregate exceeding $250,000;aggregate, would not reasonably be expected to result in a material liability to FNB, Promistar or their respective Subsidiaries) any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or other employees, including, without limitation, taking any action that accelerates the vesting or exercise of any benefits payable thereunder; or
(d) it shall use amend its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (Articles of Incorporation or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;Bylaws; or
(e) it shall:implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP; or
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to knowingly take any action that would, or would interfere with be reasonably likely to, prevent or be inconsistent with impede the completion Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the transactions contemplated hereunder Code or would render, for "pooling of interests" accounting treatment under GAAP; or (ii) knowingly take any action that is intended or is reasonably may be expected likely to render, result in (A) any representation or warranty made by it of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Date if then made Time, (other than B) any of the conditions to the Merger set forth in Article 9 not being satisfied or (C) a change material violation of recommendation in accordance with Section 5.4 and the communication any provision of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse changeexcept, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' propertieseach case, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same as may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought required by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;applicable law; or
(g) except in the usual, ordinary and regular course of business and consistent with past practice, agree or except as previously disclosed in writing commit to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise do anything prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereonthis Section 7.1.
Appears in 1 contract
Mutual Covenants. Each of Party hereby covenants to the Parties covenants and agrees other Party that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier:
(a) except it shall not, in the performance of this Agreement, perform any actions that are prohibited by applicable anti-corruption laws (including the provisions of the United States Foreign Corrupt Practices Act of 1977, as previously disclosed in writing to, or with the prior written consent ofamended, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except inU.S. Travel Act, the usualU.S. Domestic Bribery Statute and all other applicable laws and regulations in jurisdictions in which the Party engages in business that govern corruption, ordinary bribery, kickbacks and regular course of ethical business and consistent with past practicesconduct) (“Anti-Corruption Laws”) or Export Control Laws;
(b) except as previously disclosed neither such Party nor any of its Affiliates will, in writing to connection with the other exercise of such Party, including in paragraph 2 ’s rights or performance of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayedobligations under this Agreement, directly or indirectlyindirectly through Affiliates or Third Parties, including through a Subsidiarypay, do or permit promise, offer to occur any of pay, authorize the following:
(i) issue, sell, pledge, lease, dispose payment of, encumber accept or agree solicit, any money or give any promise, offer to issuegive or authorize the giving of anything of value (including, sellbut not limited, pledgeany corrupt payment, leasegratuity, dispose of emolument, bribe, kickback, improper gift, hospitality or encumber (benefit) to or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber from a public official or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares ofentity, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except person for the purpose of the renewal of obtaining or the replacement of existing credit facilities where retaining business for or with, or directing business to, any person, including such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate materialParty and its Affiliates;
(c) in connection with the exercise of such Party’s rights or performance of its obligations under this Agreement, except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld permitted by applicable government license or delayedauthorization, it shall notnot engage in any transactions or dealings with (including export, and shall cause each of its Subsidiaries not reexport or transfer any items to:
) (i) other than as previously disclosed in writing any country or territory that is subject to an embargo by the other Party hereto U.S. government (currently, Cuba, Iran, North Korea, Syria and the Crimea, Donetsk People’s Republic and Luhansk People’s Republic regions of Ukraine) or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) any entity or individual subject to sanctions, including being identified on any list of designated and prohibited parties maintained by the United States and other than as previously disclosed in writing to applicable jurisdictions (including, but not limited to, the other Party hereto or in List of Specially Designated Nationals and Blocked Persons, the usualForeign Sanctions Evaders List and the Sectoral Sanctions Identifications List, ordinary which are maintained by the Office of Foreign Assets Control of the U.S. Treasury Department and regular course the Entity List, Denied Persons List and Unverified List, which are maintained by the Bureau of business Industry and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in Security of the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effectiveU.S. Commerce Department); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts maintain records (taking into account insurance market conditions financial and offerings otherwise) and industry practices) supporting documentation related to cause its current insurance (the subject matter of this Agreement in order to document or re-insurance) policies not to be cancelled or terminated or any verify compliance with the provisions of this Section 10.6, and upon request of the coverage thereunder other Party, up to lapseone time per Calendar Year and upon reasonable advance written notice, except where shall provide the other Party or its representative with access to such cancellation, termination or lapse would not individually or in records for purposes of verifying compliance with the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies provisions of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;this Section 10.6; and
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly Party shall immediately notify the other Party, to the extent permitted by the applicable Law, if such Party to this Agreement of has any material adverse change, information or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating suspicion that the same there may be contemplated);
(f) except a violation of Anti-Corruption Laws or Export Control Laws in connection with the Lender Consents, it shall not settle exercise of such Party’s rights or compromise any claim brought by any present, former or purported holder performance of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to such Party’s obligations under this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereon.
Appears in 1 contract
Samples: Exclusive License Agreement (Skye Bioscience, Inc.)
Mutual Covenants. (a) Each of the Parties Exro, BioDE and Newco covenants and agrees that, except as contemplated in this Agreement or until the Amalgamation, until earlier of the Effective Date or the day upon which termination of this Agreement is terminated, whichever is earlier:
in accordance with Article 9 except (ai) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld parties to any deviation therefrom; or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following(ii) as expressly contemplated by this Agreement:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(iA) carry on the Business in the usual and ordinary course consistent with past practices and in a manner consistent with industry practice; and
(B) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, best efforts to preserve intact their respective its present business organizations organization and goodwillmaterial rights and franchises, to keep available the services of its current officers and employees as a group employees, and to maintain satisfactory preserve its relationships with supplierscustomers, agents, distributors, customers suppliers and others having business relationships dealings with it; and
(ii) it shall not, nor shall it permit any of its Subsidiaries to, take or its Subsidiariesfail to take any action which would cause any of such party’s representations or warranties hereunder to be untrue in any material respect or would be reasonably expected to prevent or materially impede, interfere with or delay the completion of the Amalgamation.
(b) Each of Exro, BioDE and Newco shall promptly advise the other parties in writing:
(i) of any event, condition or circumstance that might be reasonably expected to cause any representation or warranty of such party contained in this Agreement to be untrue or inaccurate in any material respect on the Effective Date (or, in the case of any representation or warranty made as of a specified date, as of such specified date);
(ii) not take of any actionMaterial Adverse Effect on such party or any event, occurrence or permit any of its Subsidiaries to take any action that development which would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than have a change of recommendation in accordance with Section 5.4 and the communication of Material Adverse Effect on such change)party; and
(iii) promptly notify the other Party to this Agreement of any material adverse changebreach by such party of any covenant, obligation or any change which could reasonably agreement contained in this Agreement.
(c) Each of Exro, BioDE and Newco shall use its reasonable best efforts to, and shall use its reasonable best efforts to cause its Subsidiaries to, perform all obligations required to be expected to become a material adverse change, in respect of its performed by such party or any of its Subsidiaries' businesses Subsidiaries under this Agreement, cooperate with the other parties hereto in connection therewith, and do all such other acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the operation transactions contemplated in this Agreement and, without limiting the generality of its the foregoing, each of Exro, BioDE and Newco shall:
(i) use reasonable best efforts to satisfy or cause to be satisfied as soon as reasonably practicable all the conditions precedent that are set forth in Article 8 hereof;
(ii) apply for and use reasonable best efforts to obtain as promptly as practicable all Appropriate Regulatory Approvals relating to such party or any of its Subsidiaries' businesses Subsidiaries and, in doing so, to keep the other party hereto reasonably informed as to the status of the proceedings related to obtaining the Appropriate Regulatory Approvals, including providing such other party with copies of all related applications and notifications, in draft form, in order for such other party to provide its reasonable comments;
(iii) use reasonable best efforts to comply promptly with all requirements which applicable Laws may impose on such party or in such party’s Subsidiaries with respect to the operation transactions contemplated hereby;
(iv) use reasonable best efforts to defend all lawsuits or other legal, regulatory or other proceedings to which it is a party challenging or affecting this Agreement or the consummation of its the transactions contemplated hereby;
(v) use reasonable best efforts to have lifted or rescinded any injunction or restraining order or other order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby;
(vi) effect all necessary registrations, filings and submissions of information required by Governmental Entities from such party or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities such party’s Subsidiaries in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;hereby; and
(gvii) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial best efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and or other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are contracts required to be obtained by it under such party or any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required such party’s Subsidiaries to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, consummate the transactions contemplated hereby which the failure to obtain would materially and adversely affect the ability of such party or by such party’s Subsidiaries to consummate the Amalgamation;transactions contemplated hereby.
(vd) fulfill all conditions Each of Exro and satisfy all provisions BioDE shall use its reasonable best efforts to complete the Concurrent Financing on the Effective Date.
(e) Each of this Agreement Exro and BioDE shall use its reasonable best efforts to cause the “Related Persons” (as such term is defined in the polices of the CSE) of BioDE and Newco after the completion of the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be is expected to significantly impede include Xxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxx Xxxxxxxx and M.A. (Xxxx) Xxxxxx, and anyone else who will be a Related Person of BioDE or Newco, to enter into an escrow agreement (the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i“Escrow Agreement”) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation BioDE Shares held by such Related Persons that will contain the release schedule set out in subsection 4.3.1 of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;National Policy 46-201.
(jf) it shall discuss Each of Exro and consider such Pre-Amalgamation Steps BioDE covenants that as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate soon as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of practicable after the Effective Date as if made thereonthat the BioDE Assets currently owned or held by BioDE will be transferred or paid out by BioDE or its successor entity at a value and to an entity to be determined by BioDE’s board of directors. The legal form of the transfer is also to be determined at the discretion of BioDE’s board of directors.
Appears in 1 contract
Samples: Amalgamation Agreement
Mutual Covenants. (a) Each of the Parties covenants NUTAQ, Nuran and Newco agrees that, except as contemplated in this Agreement or until the Amalgamation, until earlier of the Effective Date or the day upon which termination of this Agreement is terminated, whichever is earlier:
in accordance with Article 9 except (ai) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld parties to any deviation therefrom; or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following(ii) as expressly contemplated by this Agreement:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber it and its respective Subsidiaries (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):as applicable) shall
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of carry on its Subsidiaries, except pursuant to businesses in the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement usual and except for stock options issued to new hires in accordance ordinary course consistent with past practices and shares issued in respect thereofa manner consistent with industry practice; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; orand
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial best efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective its present business organizations organization and goodwillmaterial rights and franchises, to keep available the services of its current officers and employees as a group employees, and to maintain satisfactory preserve its relationships with supplierscustomers, agents, distributors, customers suppliers and others having business relationships dealings with it; and
(ii) it shall not, nor shall it permit any of its Subsidiaries to, take or its Subsidiariesfail to take any action which would cause any of such party’s representations or warranties hereunder to be untrue in any material respect or would be reasonably expected to prevent or materially impede, interfere with or delay the completion of the Amalgamation.
(b) Each of NUTAQ, Nuran and Newco shall promptly advise the other parties in writing:
(i) of any event, condition or circumstance that might be reasonably expected to cause any representation or warranty of such party contained in this Agreement to be untrue or inaccurate in any material respect on the Effective Date (or, in the case of any representation or warranty made as of a specified date, as of such specified date);
(ii) not take of any actionMaterial Adverse Effect on such party or any event, occurrence or permit any of its Subsidiaries to take any action that development which would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than have a change of recommendation in accordance with Section 5.4 and the communication of Material Adverse Effect on such change)party; and
(iii) promptly notify the other Party to this Agreement of any material adverse changebreach by such party of any covenant, obligation or any change which could reasonably agreement contained in this Agreement.
(c) Each of NUTAQ, Nuran and Newco shall use its reasonable best efforts to, and shall use its reasonable best efforts to cause its Subsidiaries to, perform all obligations required to be expected to become a material adverse change, in respect of its performed by such party or any of its Subsidiaries' businesses Subsidiaries under this Agreement, cooperate with the other parties hereto in connection therewith, and do all such other acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the operation transactions contemplated in this Agreement and, without limiting the generality of its the foregoing, each of NUTAQ, Nuran and Newco shall:
(i) use reasonable best efforts to satisfy or cause to be satisfied as soon as reasonably practicable all the conditions precedent that are set forth in Article 8 hereof;
(ii) apply for and use reasonable best efforts to obtain as promptly as practicable all Appropriate Regulatory Approvals relating to such party or any of its Subsidiaries' businesses Subsidiaries and, in doing so, to keep the other party hereto reasonably informed as to the status of the proceedings related to obtaining the Appropriate Regulatory Approvals, including providing such other party with copies of all related applications and notifications, in draft form, in order for such other party to provide its reasonable comments;
(iii) use reasonable best efforts to comply promptly with all requirements which applicable Laws may impose on such party or in such party’s Subsidiaries with respect to the operation transactions contemplated hereby;
(iv) use reasonable best efforts to defend all lawsuits or other legal, regulatory or other proceedings to which it is a party challenging or affecting this Agreement or the consummation of its the transactions contemplated hereby;
(v) use reasonable best efforts to have lifted or rescinded any injunction or restraining order or other order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby;
(vi) effect all necessary registrations, filings and submissions of information required by Governmental Entities from such party or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities such party’s Subsidiaries in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;hereby; and
(gvii) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial best efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and or other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are contracts required to be obtained by it under such party or any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required such party’s Subsidiaries to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, consummate the transactions contemplated hereby or by which the Amalgamation;
(v) fulfill all conditions failure to obtain would materially and satisfy all provisions of this Agreement and adversely affect the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication ability of such change);
(i) subject party or such party’s Subsidiaries to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with consummate the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereonhereby.
Appears in 1 contract
Samples: Amalgamation Agreement
Mutual Covenants. Each of the Parties covenants and agrees agrees, to the extent it is within its control (including, without limitation, in respect of any of its Material Joint Venture Interests in each case only to the extent that such Party has the power to do so with respect to each such Material Joint Venture Interest), that, except (i) as disclosed by the Party, or (ii) with the prior written consent of the other Parties, which consent shall not be unreasonably withheld, or (iii) as contemplated in this Agreement or the AmalgamationCombination or in connection with effecting any Pre-Combination Steps, the Kinross Financing, or the Kinross Placer Joint Venture, until the Effective Date or the day upon which this Agreement is terminatedterminated pursuant to Article 8, whichever is earlier:
(a) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries and Material Joint Venture Interests to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practicespractice;
(b) except as previously disclosed in writing may be required to the other Party, including in paragraph 2 of Schedule C hereto give effect to any court order or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiariesarbitral award, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, indirectly do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Material Subsidiaries or Material Joint Venture Interests to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) 1. any shares ofof or units in, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of or units in it or any of its SubsidiariesMaterial Subsidiaries or Material Joint Venture Interests, except other than pursuant to the exercise of stock options options, warrants or conversion or exchange rights attaching to securities which are currently outstanding (including for greater certainty the Kinross 5.5% Convertible Unsecured Subordinated Debentures issued December 5, 1996) or under existing share issuance or grant plans which have been disclosed to the other Party to this Agreement and except for or stock options issued to new hires in accordance consistent with past practices and shares issued share issuances in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) 2. except in the usual, ordinary and regular course of business and consistent with past practice, any material Material assets of it or any of its Material SubsidiariesSubsidiaries or Material Joint Venture Interests;
(ii) except for the TVX Share Consolidation, amend or propose to amend its articles or by-laws or those (or the equivalent charter documents) of any of its Material SubsidiariesSubsidiaries or the joint venture, partnership, management, operating or similar agreements or similar documents in respect of any of its Material Joint Venture Interests;
(iii) except for the TVX Share Consolidation, split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares (other than dividends or distributions made by a wholly-owned Subsidiary to a Party or to a wholly-owned Subsidiary of that Party or regular quarterly dividends in respect of its common shares, in amounts consistent with past practice, and, in the case of Kinross, dividends provided for pursuant to the provisions of its preferred shares);
(iv) redeem, purchase or offer to purchase (purchase, or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) , any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securitiessecurities as in effect on the date hereof; provided however that Kinross shall not be precluded from redeeming its 5.5% Convertible Unsecured Subordinated Debentures issued December 5, 1996;
(v) except for internal reorganizations, amalgamations or mergers involving it and/or any of its direct or indirect wholly-owned Subsidiaries, reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoeverPerson;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of acquire or agree to dispose of acquire any personPerson, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of acquire or agree to dispose of acquire any assets, which, which in each case, case are individually or in the aggregate materialMaterial, or permit any of its Subsidiaries or Material Joint Venture Interests to do any of the foregoing;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A1) satisfy or settle any claims or liabilities which are individually or in the aggregate materialMaterial, except such as have been reserved against in its most recent audited annual consolidated financial statements delivered to the other Parties; (B2) relinquish any contractual rights which are individually or in the aggregate materialMaterial; or (C3) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instrumentsinstruments which individually or in the aggregate are Material; or (4) permit any of its Subsidiaries or Material Joint Venture Interests to do any of the foregoing; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replacedfacilities, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities securities, in each case which are individually or in the aggregate materialMaterial, or permit any of its Subsidiaries or Material Joint Venture Interests to do any of the foregoing;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Material Subsidiaries not toand Material Joint Venture Interests to not:
(i) other than as previously disclosed in writing to the other Party hereto or except in the usual, ordinary and regular course of business and consistent with past practice or as required pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policiesBenefit Plans, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements withsuch Benefit Plans, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred or other compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers of its directors, officers, employees, consultants, contractors or directors of it or any Subsidiary;agents; and
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which the Party or its Material Subsidiaries or Material Joint Venture Interests that have been previously provided approved by such Party's Board of Directors, or where such Board of Directors determines, acting reasonably and after giving appropriate consideration to the effect on the other Party)Parties hereto and on the transactions contemplated hereby, that it is in the best interests and necessary course of business of such Party and its Material Subsidiaries and Material Joint Venture Interests, taken as a whole, that it so reallocate or incur or commit to such capital expenditures without obtaining the written consent of the other Parties, reallocate capital expenditures among categories within such budgets, or incur or commit to capital expenditures expenditures, prior to the Effective Date Date, individually or in the aggregate exceeding $250,000U.S.$10,000,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (policies and those of its Material Subsidiaries and Material Joint Venture Interests, including directors' and officers' insurance or re-insurance) policies insurance policies, not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums or premiums consistent with then current industry premium experience are in full force and effect; provided that nothing in this Section shall limit:
(i) the Parties' ability to purchase and maintain six year run-off directors' and officers' insurance for the benefit of its directors and officers and those of its Subsidiaries or Material Joint Venture Interests; and
(ii) Kinross' obligations pursuant to Section 4.9(2)(b);
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Material Subsidiaries and Material Joint Venture Interests to use its reasonable commercial efforts, to preserve intact their respective its business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory existing relationships with suppliers, consultants, joint venture participants, partners, professional advisors, agents, distributors, customers customers, Governmental Entities and others having business relationships with it or it, its SubsidiariesMaterial Subsidiaries and its Material Joint Venture Interests;
(ii) not take any action, or permit any of its Subsidiaries or Material Joint Venture Interests to take any action action, that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, render (1) any representation or warranty made by it in this Agreement that is qualified as to materiality untrue or (2) any of such representations and warranties that are not so qualified untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change)Material respect; and
(iii) to the extent it has knowledge thereof, promptly notify the other Party to this Agreement Parties of (1) any material adverse changeMaterial Adverse Change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' propertiesMaterial Adverse Change, and of (2) any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated)) which are Material;
(f) except in connection with the Lender Consents, it shall not, and shall cause each of its Subsidiaries and Material Joint Venture Interests not to, settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation Combination prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this AgreementDate;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it shall not, and shall cause each of its Subsidiaries shall and Material Joint Venture Interests not to, enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material Material to a that Party hereto or which would have a material adverse effect on a Party heretoMaterial Adverse Effect;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control not, and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under shall not permit any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not Subsidiaries or Material Joint Venture Interests to, take any action, refrain from taking any action, or permit any action to be taken on its behalf, and it shall, and shall cause its Subsidiaries or not Material Joint Venture Interests to, refrain from taking any action which, in either case, if taken, would be inconsistent with this Agreement or which would interfere with or be inconsistent with or would reasonably be expected to significantly impede the consummation completion of the Amalgamation (other than a change Combination or any of recommendation in accordance with Section 5.4 and the communication of such change)transactions contemplated hereby;
(i) subject to the Confidentiality Agreement and Section 5.7extent it has knowledge thereof, it willshall, in all material Material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material Material decisions or actions made or required to be made or actions required to be taken with respect to the operation of its businessbusiness and that of its Material Subsidiaries and Material Joint Venture Interests, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not reasonably be obtained or and provided further that no such disclosure is with required in respect to customer specific or competitively sensitive information relating to properties, areas or projects where Acetex and AT Plastics the Parties are competitors;
(j) it shall discuss cause its nominees on the board of directors or management or operating committee of each Material Joint Venture Interest, subject to fulfilment of the fiduciary duties to which any such nominee is subject, applicable Law and consider any existing contractual obligations, to perform such Pre-Amalgamation Steps acts and to do such other things consistent with the foregoing as may be proposed by if they applied to the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party heretoMaterial Joint Venture Interest;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs and those of its Material Subsidiaries and Material Joint Venture Interests so that all of its representations and warranties contained herein shall be true and correct in all material Material respects on and as of the Effective Date as if made thereon.thereon (except to the extent that any such representations and warranties speak as of an earlier date or except as affected by transactions contemplated or permitted by this Agreement or except for any failures or breaches of representations and warranties which individually or in the aggregate would not have a Material Adverse Effect on the Party or materially impede the completion of the Combination or the other transactions contemplated hereby); and
Appears in 1 contract
Mutual Covenants. Each of the Parties covenants and agrees that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement is terminated, whichever is earlier:
(a) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, The Company and King shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take promptly complete any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not filing that may be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except required pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
HSR Act (B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shareseach an "HSR Filing"), or declare, set aside or pay shall mutually agree that no such filing is required. If any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may HSR Filing shall be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement Agreement, then the Company and King shall diligently take, or fully cooperate in the Amalgamation prior taking of, all necessary and proper steps, and provide any additional information reasonably requested in order to comply with, the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, requirements of the other Party to this Agreement;HSR Act. Each party shall pay its own expenses in connection with the HSR Filings and the Company shall pay any filing fees associated with the HSR Filings.
(gb) except in the usualThe Company, ordinary King and regular course of business and consistent with past practiceParkedale, or except as previously disclosed in writing to the other Party hereto or promptly as required by applicable Lawspracticable, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(hi) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and takewill make, or cause to be takenmade, all other action such filings and submissions under laws, rules and regulations applicable to dothem as may be required for them to consummate the transactions contemplated hereby in accordance with the terms of this Agreement and the Related Agreements, and (ii) will use commercially reasonable efforts to obtain, or cause to be doneobtained, all other things necessaryauthorizations, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waiversapprovals, consents and approvals required waivers from all governmental authorities necessary to be obtained by it from other parties them in order for them to loan agreements, leases and other contracts;consummate such transactions.
(iic) obtain all necessary consentsExcept as otherwise required by law (including their respective filing and disclosure obligations under the Securities Act, approvals the Exchange Act and authorizations as are required the rules and regulations promulgated thereunder), Nasdaq National Market ("Nasdaq") and applicable stock exchange requirements, from the date of this Agreement until thirty (30) days after the Closing Date, neither the Company, King nor any of King's subsidiaries shall, and each of them shall cause their respective affiliates, officers, directors, representatives and agents not to, issue or cause the publication of any press release or public announcement with respect to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby by this Agreement, except for the issuance of the press release attached hereto at Exhibit C or as otherwise mutually agreed by the Amalgamation;parties in writing.
(vd) fulfill all conditions The Company, King and satisfy all provisions each of their respective subsidiaries shall, from the date of this Agreement and at all times thereafter, maintain strict confidentiality with respect to all confidential or proprietary documents and information furnished to such party by or on behalf of the Amalgamationother party. Nothing shall be deemed to be confidential information that (it being understood that the receiving party shall bear the burden of proof with respect to the following): (i) was known to the receiving party at the time of its disclosure by or on behalf of the disclosing party; (ii) becomes publicly known or available other than through disclosure by the receiving party; (iii) is received by the receiving party from a third party not actually known by the receiving party (after due inquiry) to be bound by a confidentiality agreement with or obligation to the other party; or (iv) is independently developed by the receiving party without reference to or use of such confidential information. Notwithstanding the foregoing provisions of this Section 4.1(d), each of the Company, King and King's subsidiaries may disclose such confidential information (A) to the extent required or deemed advisable on the advice of counsel to comply with applicable laws (including the Securities Act, the Exchange Act, and the rules and regulations under the Securities Act or the Exchange Act), and applicable Nasdaq and stock exchange requirements, (B) to its officers, directors, employees, representatives, financial advisors, attorneys, accountants, agents, underwriters, lenders, investors and any other potential sources of financing (provided that each of the Company, King and their respective subsidiaries shall be responsible for any violation of the restrictions hereunder by its respective representatives), (C) to any governmental authority in connection with, and to the extent required to effect, the Transactions, and (D) in the event it is required in response to a valid order by a governmental, quasi-governmental, judicial or quasi-judicial entity to disclose any such confidential information. Notwithstanding anything to the contrary contained herein, the terms and conditions of this Section 4.1(d) shall not apply to King HPV Confidential Information or Novavax HPV Confidential Information.
(e) Neither party shall make, and each party shall ensure that none of such party's directors or officers shall disparage the other party or any of the other party's officers, directors, employees, stockholders or affiliates, or the pharmaceutical products to which any of the Collaboration Agreements relate, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; pharmaceutical product marketed under the name ESTRASORB ("Estrasorb" and, together with such other pharmaceutical products, the "Collaborative Pharmaceutical Products").
(vif) Each party shall cooperate with the other Party to this Agreement in connection with party, and exchange such information as is reasonably requested by the performance by it other party, and otherwise facilitate an orderly transition, and effect the transfer of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation all Collaborative Pharmaceutical Products (other than a change of recommendation in accordance with Section 5.4 the pharmaceutical product marketed under the name NORDETTE) and the communication of such change);
(i) subject related assets from King and its subsidiaries to the Confidentiality Agreement and Company as contemplated by Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereon1.6(b).
Appears in 1 contract
Samples: Exchange Agreement (Novavax Inc)
Mutual Covenants. Each of the Parties covenants and agrees that, except as contemplated in this Agreement, during the period from the date of this Agreement or the Amalgamation, until the earlier of the Effective Date or Time and the day upon which time that this Agreement is terminatedterminated in accordance with its terms, whichever is earlierit will:
(a) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market to satisfy all conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any precedent in this Agreement, carry out the terms of the coverage thereunder Interim Order and the Final Order to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously extent applicable to it and comply promptly with such termination, cancellation or lapse, replacement policies underwritten all requirements imposed by insurance Law on it with respect to this Agreement and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effectArrangement;
(e) it shall:
(ib) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its upon reasonable commercial effortsconsultation with the other Party, to preserve intact their respective business organizations oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of the Arrangement and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any actiondefend, or permit any of its Subsidiaries cause to take any action that would interfere with be defended, all lawsuits or be inconsistent with other legal, regulatory or other proceedings challenging or affecting this Agreement or the completion consummation of the transactions contemplated hereunder hereby; provided that, reasonable commercial efforts shall not require AcquisitionCo to proffer, negotiate, effect or would renderagree to, the sale, divestiture, transfer or other disposition of any properties, assets, rights, interests, operations, businesses or its assets; or to accept any other conditions, restrictions, limitations or agreements affecting AcquisitionCo’s or its affiliates’ freedom of action with respect to, or that reasonably may be expected its ability to renderretain, any representation properties, assets, rights, interests, operations, businesses, the Common Shares or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); andSMART Assets;
(iiic) promptly notify the other Party to this Agreement in writing of (i) any material adverse change, notice or other communication from any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in person alleging that the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings consent (or communications indicating that the same waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such person (or another person) is or may be contemplated);
(f) except required in connection with this Agreement or the Lender ConsentsArrangement (and the response thereto from such Party or its representatives), it shall not settle or compromise (ii) any claim brought by communication from any present, former or purported holder of any of its securities Governmental Entity in connection with the transactions and Regulatory Approvals contemplated by this Agreement (and the response thereto from such Party or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld its representatives) or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift Legal Action threatened or rescind any injunction or restraining order or other order or action seeking to stop, commenced against or otherwise adversely affecting the ability of the Parties such Party that is related to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3hereby; and
(vid) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any reasonable commercial action, or permit any action to be taken or reasonable commercial action to not be taken, which is inconsistent with this Agreement or which would reasonably be expected to prevent, materially impede or significantly impede delay the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made Arrangement or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein hereby or which would diminish the value of SMART and take all reasonable action necessary to be the SMART Subsidiaries (taken as a whole) or the SMART Assets in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct any way, in all material respects on and each case, except as of the Effective Date as if made thereonpermitted by this Agreement.
Appears in 1 contract
Mutual Covenants. Each of the Parties covenants and agrees that, except as contemplated in this Agreement, during the period from the date of this Agreement or the Amalgamation, until the earlier of the Effective Date or Time and the day upon which time that this Agreement is terminatedterminated in accordance with its terms, whichever is earlierit will:
(a) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market to satisfy all conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any precedent in this Agreement, carry out the terms of the coverage thereunder Interim Order and the Final Order to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously extent applicable to it and comply promptly with such termination, cancellation or lapse, replacement policies underwritten all requirements imposed by insurance Law on it with respect to this Agreement and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effectArrangement;
(e) it shall:
(ib) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its upon reasonable commercial effortsconsultation with the other Party, to preserve intact their respective business organizations oppose, lift or rescind any injunction, restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or adversely affect the consummation of the Arrangement and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any actiondefend, or permit any of its Subsidiaries cause to take any action that would interfere with be defended, all lawsuits or be inconsistent with other legal, regulatory or other proceedings challenging or affecting this Agreement or the completion consummation of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); andhereby;
(iiic) promptly notify the other Party to this Agreement of in writing of: (i) any material adverse change, notice or other communication from any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in person alleging that the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings consent (or communications indicating that the same waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such person (or another person) is or may be contemplated);
(f) except required in connection with this Agreement or the Lender Consents, it shall not settle Arrangement (and the response thereto from such Party or compromise its representatives); (ii) any claim brought by communication from any present, former or purported holder of any of its securities Governmental Entity in connection with the transactions and Regulatory Approvals contemplated by this Agreement (and the response thereto from such Party or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld its representatives); or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift Legal Action threatened or rescind any injunction or restraining order or other order or action seeking to stop, commenced against or otherwise adversely affecting the ability of the Parties such Party that is related to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3hereby; and
(vid) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any reasonable commercial action, or permit any action to be taken or reasonable commercial action to not be taken, which is inconsistent with this Agreement or which would reasonably be expected to prevent, materially impede or significantly impede delay the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made Arrangement or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein hereby or which would diminish the value of DirectCash and take all reasonable action necessary to be the DirectCash Subsidiaries (taken as a whole) or the DirectCash Assets in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct any way, in all material respects on and each case, except as of the Effective Date as if made thereonpermitted by this Agreement.
Appears in 1 contract
Mutual Covenants. 10.1 Each of the Parties covenants HIC and agrees FansUnite covenant and agree that, except as contemplated in this Agreement or until the Amalgamation, until earlier of the Effective Date or the day upon date on which this Agreement is terminated, whichever is earlierterminated and unless otherwise contemplated herein:
(a) except other than as previously disclosed in writing to, contemplated herein or with the prior written consent of, as otherwise approved by the other Party heretoParties in writing, it shall, and shall cause each none of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayedthem will, directly or indirectly, including through a Subsidiary, do or permit to occur occur, any of the following:
(i) except for: (A) payables existing at the date hereof of which the other Parties have been made aware prior to the date hereof; and (B) legal, audit and printing costs in connection with the transactions contemplated by this Agreement, or with the consent of the other Parties, acting reasonably, make, commit, or allow commitments to make, any expenditures exceeding, in the aggregate, $25,000 other than in the ordinary course of business;
(ii) other than securities issuable as contemplated by this Agreement (including pursuant to the HIC Bridge Financing, the Concurrent FansUnite Financing and the Finder’s Shares) or securities issuable on conversion of convertible securities outstanding as of the date of this Agreement (including the FansUnite Options and the Subscription Receipts), issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any additional shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practicesecurities of, any material assets of it capital stock or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiariesother securities;
(iii) split, combine or reclassify any of its outstanding shares, Shares or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its sharesany of their respective Shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares their respective Shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate amalgamate, arrange or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoeverPerson;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate materialreduce its stated capital;
(vii) except acquire or agree to acquire (by merger, amalgamation, arrangement, acquisition of securities or assets or otherwise) any Person or division or any assets or properties other than in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; orpractices;
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same other than securities issuable as or less than the principal amount of the facilities renewed or replacedcontemplated by this Agreement, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate materialsecurities;
(cix) enter into or modify any employment, severance, collective bargaining or similar agreements or arrangements with, or grant any bonuses, salary increases, benefit increases, severance or termination pay to, any officers, directors, employees or consultants other than pursuant to agreements and arrangements previously entered into or in accordance with this Agreement;
(x) adopt or amend any bonus, profit sharing, incentive, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(xi) enter into any transaction not in the ordinary course of business or pay any dividends or make any distributions to their respective shareholders;
(xii) conduct any activity or operations that would be otherwise detrimental to the completion of the Transaction;
(xiii) other than pursuant to commitments entered into prior to the date of the Agreement and disclosed to the other Parties in writing prior to the date hereof, pay, discharge or satisfy any material claims, liabilities or obligations other than in the ordinary course of business consistent with past practices;
(xiv) enter into or close any hedge, swap or other like transaction;
(xv) make any payment to any director, officer or employee outside of their ordinary and usual compensation for services provided;
(xvi) grant any officer, director or employee an increase in compensation in any form or take any action with respect to the amendment or grant of any severance or termination pay policies or arrangements;
(xvii) disclose to any Person other than its officers, directors, key employees and professional advisors, any confidential information relating to the other Parties, except for confidential information required to be disclosed by law or otherwise known to it or the public;
(xviii) take any action that would render, or that reasonably may be expected to render, any material representation or warranty made by it in this Agreement untrue at any time prior to the Transaction becoming effective unless as otherwise contemplated herein; and
(xix) except as may be required under by law or to secure any approvals, consents or authorizations necessary to carry out the Lender Consentstransactions contemplated by this Agreement, and subject always to Section 14.1, issue any public statements with respect to the transactions contemplated by this Agreement without the prior written consent and approval of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, Parties.
(b) Each of HIC and shall cause each of its Subsidiaries not toFansUnite will:
(i) other than use its reasonable commercial efforts to fulfill or cause the fulfillment of the conditions set forth in Article 5, Article 6 and Article 7, as previously disclosed in writing applicable, as soon as reasonably possible to the other Party hereto or extent the fulfillment of the same is within its control;
(ii) conduct its business only in and not take any action except in, the usual, ordinary and regular course of business and consistent with past practice or pursuant and not take any action which may reasonably be expected to existing result in a Material Adverse Change, including, without limiting the generality of the foregoing, the entering into of employment, pension, supplemental pension, termination, compensation consultancy or severance agreements or other arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not directors or officers without the other Parties’ written consent or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); oras contemplated herein;
(iii) except as set forth maintain insurance on and in respect of all its assets in like kind to, and in an amount not less than the Parties' previously approved respective capital budgets (copies of which have been previously provided amount of, insurance with respect to its assets in effect on the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000date hereof;
(div) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective its business organizations organization and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiariesit;
(iiv) not take any action, or permit any provide to the other Parties reports on its operations and affairs as may be reasonably requested from time to time by the other Parties;
(vi) cooperate with the other Parties to enable an orderly integration of its Subsidiaries to take any action that would interfere business with or be inconsistent with the completion those of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to other Parties after the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); andDate;
(iiivii) promptly notify the other Party to this Agreement Parties orally and in writing of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' propertiesMaterial Adverse Change, and of any material Governmental Entity governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated)) which is material to it;
(fviii) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not make available and cause to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing made available to the other Party hereto or Parties, their respective agents and advisors, as required by applicable Lawsthe other Parties may reasonably request, all documents and agreements (including without limitation, any correspondence between it and its Subsidiaries shall not enter into advisors, or modify any governmental body and all minute books) and access to its premises, records, computer systems and employees in any material respect any contract, agreement, commitment way relating to or arrangement which new contract affecting its financial status and such other documents or series agreements as may be necessary to enable the other Parties to verify the truth of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control representations and take, or cause to be taken, all other action warranties herein and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained compliance by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation terms and participate conditions hereof, except where it is contractually precluded from making such document or agreement available, and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement Parties in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep securing access for the other Parties to this Agreement fully informed as to the material decisions required to be made any such documentation not in its possession or actions required to be taken with respect to the operation of under its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitorscontrol;
(jix) it shall discuss indemnify and consider such Pre-Amalgamation Steps as save harmless the other Parties and the respective directors, officers and agents of the other Parties from and against any and all liabilities, claims, demands, losses, costs, damages and expenses (excluding any loss of profits or consequential damages) to which the other Parties, or any director, officer or agent thereof, may be proposed subject or which the other Parties, or any director, officer or agent thereof, may suffer or incur, whether under the provisions of any statute or otherwise, in any way caused by, or arising, directly or indirectly, from or in consequence of any Misrepresentation or alleged Misrepresentation in the HIC Listing Statement or in the notice of meeting for the FansUnite Meeting or other materials delivered to the FansUnite Shareholders to obtain their approval of the FansUnite Resolution, other than Misrepresentations respecting the other Parties, their respective business and assets contained in information provided to it by the other Party hereto and implement Parties for inclusion in such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party heretomaterials;
(kx) it shall make or cooperate as necessary in the making of all other necessary filings and applications under all applicable Laws Canadian federal and provincial laws and regulations required on its part in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; andlaws and regulations;
(lxi) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall will be true and correct in all material respects on and as of the Effective Date as if made thereonthereon except as otherwise contemplated herein.
10.2 Subject to the provisions of Sections 10.3 and 10.4, neither HIC nor FansUnite will, directly or indirectly, through officers, directors, employees, Affiliates, representatives, advisors, agents, investment bankers, consultants or otherwise, take any action to solicit, initiate, encourage, or participate in any discussions or negotiations with any Person, provide any non-public information to any Person or otherwise assist or cause or facilitate anyone else to solicit, initiate, encourage, or participate in any discussions or negotiations with any Person, or provide any nonpublic information to any Person or otherwise assist with respect to: (A) any transaction that may constitute a Take-over Proposal; or (B) any other transaction, the consummation of which would, or could reasonably be expected to, impede, interfere with, prevent or delay the transactions contemplated by this Agreement or which would or could reasonably be expected to reduce the benefits to the other Parties under this Agreement and will not waive, or otherwise forbear in the enforcement of, or enter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any of its rights or other benefits under any confidentiality agreements existing as of the date hereof, including, without limitation, any standstill provisions thereunder; provided, however, that subject to Sections 10.3 and 10.4 hereof, the board of directors of any Party may consider, negotiate, accept, approve or recommend to its shareholders, or enter into an agreement, understanding or arrangement in respect of, an unsolicited Superior Proposal (as defined herein).
10.3 Prior to considering, negotiating, accepting, approving or recommending to its shareholders or entering into an agreement, understanding or arrangement in respect of, an unsolicited Superior Proposal, each Party will:
(a) advise the other Parties in writing of the existence and terms of any such offer or proposal and provide copies thereof to the other Parties as soon as reasonably possible following its receipt thereof;
(b) provide copies of any information provided to the Person making the Superior Proposal, which has not already been made available to the other Parties; and
(c) if requested by any of the other Parties, prior to accepting, recommending, approving or entering into any agreement to implement the Superior Proposal, to negotiate in good faith with the other Parties and their respective legal and financial advisors for a period of up to three Business Days to permit the other Parties, if practicable, to propose such adjustments in the terms and conditions of this Agreement as may be necessary or advisable such that, in the bona fide opinion of such Party’s board of directors, the Take-Over Proposal is no longer a Superior Proposal. In the event that the other Parties propose to so amend this Agreement to provide substantially equivalent or superior value to that provided under the Superior Proposal, no Party will accept, recommend, approve or enter into any agreement to implement the Superior Proposal.
10.4 Subject to compliance with Section 10.3 hereof, if prior to the completion of the Transaction, a bona fide Take-Over Proposal is proposed, offered or made to a Party or to a Party’s shareholders which, in the bona fide opinion of a Party’s board of directors would result in a financially superior transaction, directly or indirectly, for its shareholders than that contemplated by the Transaction (any such Take-Over Proposal being referred to herein as a “Superior Proposal”), a Party’s board of directors may withdraw, modify or change its approval of the transactions contemplated by this Agreement if, in the opinion of such board of directors acting reasonably and upon the written advice of its legal counsel, such withdrawal, modification or change is required or would be consistent with the fiduciary duties of its board of directors under Applicable Laws.
Appears in 1 contract
Samples: Amalgamation Agreement
Mutual Covenants. Each of the Parties In addition to any covenants and agrees that, except as contemplated made by each Party elsewhere in this Agreement or Agreement, each Party hereby covenants to the Amalgamationother Party, until as of the Effective Date or and during the day upon which this Agreement is terminatedTerm, whichever is earlieras follows:
(a) except as previously disclosed in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall use Commercially Reasonable Efforts to cause each its Affiliates and Sublicensees (in the case of its Subsidiaries to, conduct Licensee) or (sub)licensees (in the case of C4T) and its and their respective businesses only inemployees and contractors to, exercise the rights granted to it and not take any action except in, perform its ACTIVE/119414966.70 obligations under this Agreement in compliance with the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other PartyApplicable Laws, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall not, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, directly or indirectly, including through a Subsidiary, do or permit to occur any of the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Effective Date if then made (other than a change of recommendation in accordance with Section 5.4 and the communication of such change); and
(iii) promptly notify the other Party to this Agreement of any material adverse change, or any change which could reasonably be expected to become a material adverse change, in respect of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder of any of its securities in connection with the transactions contemplated by this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not to be unreasonably withheld or delayed, of the other Party to this Agreement;
(g) except in the usual, ordinary and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain obtaining all necessary consents, approvals and authorizations of all applicable Regulatory Authorities and Governmental Authorities as are required by the Applicable Laws. Without limiting the foregoing, it shall, and shall use Commercially Reasonable Efforts to be obtained by cause its Affiliates and Sublicensees (in the case of Licensee) or (sub)licensees (in the case of C4T) and its and their respective employees and contractors to, use any human genetic resources or information related thereto (“HGR”) under this Agreement in full compliance with all Applicable Laws.
(b) it under will not knowingly, during the Term, employ or use, including through the use of Sublicensee(s) (in the case of Licensee) or (sub)licensees (in the case of C4T), or subcontractors, the services of any applicable Lawsperson who is debarred or disqualified in connection with activities relating to the Compound or Products; and in the event that it becomes aware of the debarment or disqualification or threatened debarment or disqualification of any person providing services to it, its Sublicensees (in the case of Licensee) or (sub)licensees (in the case of C4T), or subcontractors with respect to any activities relating to the Compound or Products or otherwise related to this Agreement, it will notify the other Party in writing and will cease employing, contracting with, or retaining any such person to perform any services relating to the Compound or Products or this Agreement;
(iiic) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) opposewill not, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability of the Parties to consummate, the transactions contemplated hereby or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any actionunder this Agreement, refrain from taking any actiondirectly or indirectly through Third Parties, pay, promise or offer to pay, or permit authorize the payment of, any action money or give any promise or offer to be taken give, or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede authorize the consummation giving of the Amalgamation (other than a change anything of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed value to a third party public official or entity or other person for which purpose of obtaining or retaining business for or with, or directing business to, any person, including itself nor will it directly or indirectly promise, offer or provide any corrupt payment, gratuity, emolument, bribe, kickback, illicit gift or hospitality or other illegal or unethical benefit to a waiver could not be obtained public official or is with respect to customer specific entity or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the any other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required person in connection with the transactions contemplated herein performance of its obligations under this Agreement;
(d) it has in place an anti-corruption and take all reasonable action necessary anti-bribery policy that requires compliance with the applicable Anti-Corruption Laws and, in connection with the performance of its obligations under this Agreement, it shall comply and shall cause its and its Affiliates’ employees, contractors and agents to comply with applicable Anti-Corruption Laws and laws for the prevention of fraud, racketeering, money laundering or terrorism;
(e) it shall not, and shall [*] cause its Affiliates and Sublicensees (in the case of Licensee) or (sub)licensees (in the case of C4T), and its and their respective employees, contractors and agents not to, cause the other Party to be in compliance violation of the Anti-Corruption Laws, Export Control Laws, or any other Applicable Laws, including any other applicable anti-corruption and anti-bribery laws, in connection with such Laws; andor arising as a result of actions or omissions of it or its Affiliates, Sublicensees (in the case of Licensee) or (sub)licensees (in the case of C4T) or its and their respective employees, contractors and agents in respect of or related to this Agreement;
(lf) it shall use promptly notify the other Party if it has any information or [*] suspicion that there may be a violation of the Anti-Corruption Laws, Export Control Laws, or any other Applicable Laws, including any other applicable anti-corruption and anti-bribery laws and data protection and privacy laws, in connection with the performance of its reasonable commercial efforts to obligations under this Agreement; and ACTIVE/119414966.70
(g) it will conduct its affairs so that all of its representations obligations with respect to each Development Plan and warranties contained herein shall Commercialization Plan in strict adherence with the study design set forth therein, each as may be true and correct in all material respects on and as of the Effective Date as if made thereonamended from time to time.
Appears in 1 contract
Samples: License and Collaboration Agreement (C4 Therapeutics, Inc.)
Mutual Covenants. Each of the Parties covenants Provided, and agrees that, except as contemplated in this Agreement or the Amalgamation, until the Effective Date or the day upon which this Agreement it is terminated, whichever is earlierexpressly agreed:
(a) except as previously disclosed Seizure and Bankruptcy ---------------------- That, in writing to, or with the prior written consent of, the other Party hereto, it shall, and shall cause each of its Subsidiaries to, conduct its and their respective businesses only in, and not take any action except in, the usual, ordinary and regular course of business and consistent with past practices;
(b) except as previously disclosed in writing to the other Party, including in paragraph 2 of Schedule C hereto or except in respect of internal transactions involving a Party and its wholly-owned Subsidiaries or among such Subsidiaries, it shall notcase, without the prior written consent of the other Party heretoLandlord, which the Leased Premises shall become and remain vacant or not be unreasonably withheld or delayed, directly or indirectly, including through used for a Subsidiary, do or permit to occur any of period often (10) days while the following:
(i) issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber (or permit any of its Subsidiaries to issue, sell, pledge, lease, dispose of, encumber or agree to issue, sell, pledge, lease, dispose of or encumber):
(A) any shares ofsame is suitable for use by the Tenant, or shall used by any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of it or any of its Subsidiaries, except pursuant to person other than the exercise of stock options currently outstanding or under existing share issuance plans which have been disclosed to the other Party to this Agreement and except for stock options issued to new hires in accordance with past practices and shares issued in respect thereof; and as Acetex may deem appropriate or necessary for purposes of refinancing the debt of the Amalgamated Corporation; or
(B) except in the usual, ordinary and regular course of business and consistent with past practice, any material assets of it or any of its Material Subsidiaries;
(ii) amend or propose to amend its articles or by-laws or those of any of its Material Subsidiaries;
(iii) split, combine or reclassify any of its outstanding sharesTenant, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to its shares;
(iv) redeem, purchase or offer to purchase (or permit any of its Material Subsidiaries to redeem, purchase or offer to purchase) any shares or other securities of it or any of its Material Subsidiaries, unless otherwise required by case the terms of such securities;
(v) reorganize, amalgamate or merge it or any of its Material Subsidiaries with any other person, corporation, partnership or other business organization whatsoever;
(vi) except in the usual, ordinary and regular course of business and consistent with past practice, acquire, agree to acquire, dispose of or agree to dispose of any person, corporation, partnership, joint venture or other business organization or division or acquire, agree to acquire, dispose of or agree to dispose of any assets, which, in each case, are individually or in the aggregate material;
(vii) except in the usual, ordinary and regular course of business and consistent with past practice: (A) satisfy or settle any claims or liabilities which are individually or in the aggregate material; (B) relinquish any contractual rights which are individually or in the aggregate material; or (C) enter into any interest rate, currency or commodity swaps, xxxxxx or other similar financial instruments; or
(viii) except in the usual, ordinary and regular course of business and consistent with past practice, and except for the purpose of the renewal of or the replacement of existing credit facilities where such renewal or replacement facilities are for a principal amount approximately the same as or less than the principal amount of the facilities renewed or replaced, incur or commit to provide guarantees, incur any indebtedness for borrowed money or issue any amount of debt securities which are individually or in the aggregate material;
(c) except as may be required under the Lender Consents, without the prior written consent of the other Party hereto, which shall not be unreasonably withheld or delayed, it shall not, and shall cause each of its Subsidiaries not to:
(i) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, enter into or modify any employment, severance, collective bargaining or similar agreements, policies or arrangements with, or grant any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay to, or make any loan to, any officers or directors of it or any Subsidiary;
(ii) other than as previously disclosed in writing to the other Party hereto or in the usual, ordinary and regular course of business and consistent with past practice or pursuant to existing employment, pension, supplemental pension, termination, compensation arrangements or policies, in the case of employees of it or any of its Subsidiaries who are not officers or directors, take any action with respect to the entering into or modifying of any employment, severance, collective bargaining or similar agreements, policies or arrangements or with respect to the grant of any bonuses, salary increases, stock options, pension or supplemental pension benefits, profit sharing, retirement allowances, deferred compensation, incentive compensation, severance or termination pay or any other form of compensation or profit sharing or with respect to any increase of benefits payable (provided that Acetex consents to the acceleration of vesting of all options under the AT Plastics Option Plan upon the Amalgamation becoming effective); or
(iii) except as set forth in the Parties' previously approved respective capital budgets (copies of which have been previously provided to the other Party), incur or commit to capital expenditures prior to the Effective Date individually or in the aggregate exceeding $250,000;
(d) it shall use its reasonable commercial efforts (taking into account insurance market conditions and offerings and industry practices) to cause its current insurance (or re-insurance) policies not to be cancelled or terminated Term or any of the coverage thereunder to lapse, except where such cancellation, termination or lapse would not individually or in the aggregate have a material adverse effect, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance goods and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(e) it shall:
(i) use its reasonable commercial efforts, and cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact their respective business organizations and goodwill, to keep available the services of its officers and employees as a group and to maintain satisfactory relationships with suppliers, agents, distributors, customers and others having business relationships with it or its Subsidiaries;
(ii) not take any action, or permit any of its Subsidiaries to take any action that would interfere with or be inconsistent with the completion chattels of the transactions contemplated hereunder or would render, or that reasonably may Tenant shall be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to seized or taken in execution or in attachment by any creditor of the Effective Date Tenant, or if then made the Tenant shall make any assignment for the benefit of creditors or give any xxxx of sale without complying with The Bulk Sales Act (other than a change of recommendation in accordance with Section 5.4 and Ontario) or becomes bankrupt or insolvent, or take the communication of such change); and
(iii) promptly notify the other Party to this Agreement benefit of any material adverse changeAct now or hereafter in force for bankrupt or insolvent debtors or files any proposal or makes an assignment for the benefit of creditors or if a receiver is appointed for all or a portion of the Tenant's property of if any order is made for the winding up of the Tenant, or any change which could reasonably be expected if the Tenant shall make a sale in bulk, or, if the Tenant abandons or attempts to become a material adverse change, in respect of its abandon the Leased Premises or any of its Subsidiaries' businesses to sell or in the operation of its or any of its Subsidiaries' businesses or in the operation of its or any of its Subsidiaries' properties, and of any material Governmental Entity or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated);
(f) except in connection with the Lender Consents, it shall not settle or compromise any claim brought by any present, former or purported holder dispose of any of its securities the goods and chattels of the Tenant or to remove them from the Leased Premises so that there would not in connection with the transactions contemplated by event of such sale or disposal be sufficient goods on the Leased Premises subject to distress to satisfy all rentals due or accruing hereunder, or if the Tenant shall fail to pay any rent or other sums due hereunder on the day or dates appointed for payment thereof, or, if the Tenant shall fail to perform any other of the terms, conditions or covenants of this Agreement or the Amalgamation prior to the Effective Date without the prior written consent, not Lease to be unreasonably withheld observed or delayedperformed by the Tenant, or if re-entry is permitted under any other terms of this Lease, then, and in every such case, the then current month's rent and the next ensuing three months rent and additional rent shall immediately become due and payable as accelerated rent, and, at the option of the other Party to Landlord this Agreement;
(g) except lease shall cease and determine and the Term hereby demised shall immediately become forfeited and void, in which event the usual, ordinary Landlord may re-enter and regular course of business and consistent with past practice, or except as previously disclosed in writing to the other Party hereto or as required by applicable Laws, it and its Subsidiaries shall not enter into or modify in any material respect any contract, agreement, commitment or arrangement which new contract or series of related new contracts or modification to an existing contract or series of related existing contracts would be material to a Party hereto or which would have a material adverse effect on a Party hereto;
(h) it shall use all reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder set forth in Article 6 to the extent the same is within its control and take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Amalgamation, including using its reasonable commercial efforts to:
(i) obtain all necessary waivers, consents and approvals required to be obtained by it from other parties to loan agreements, leases and other contracts;
(ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by it under any applicable Laws;
(iii) effect all necessary registrations and filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Amalgamation and participate and appear in any proceedings of either Party before Governmental Entities in connection with the Amalgamation;
(iv) oppose, lift or rescind any injunction or restraining order or other order or action seeking to stop, or otherwise adversely affecting the ability take possession of the Parties to consummate, Leased Premises as though the transactions contemplated hereby Tenant or by the Amalgamation;
(v) fulfill all conditions and satisfy all provisions of this Agreement and the Amalgamation, including delivery any occupant or occupants of the certificates of their respective officers contemplated by Section 6.2 and Section 6.3; and
(vi) cooperate with Leased Premises was or were holding over after the other Party to this Agreement in connection with the performance by it of its obligations hereunder;
(vii) it shall not take any action, refrain from taking any action, or permit any action to be taken or not taken, inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation expiration of the Amalgamation (other than a change of recommendation in accordance with Section 5.4 and the communication of such change);
(i) subject to the Confidentiality Agreement and Section 5.7, it will, in all material respects, conduct itself so as to keep the other Parties to this Agreement fully informed as to the material decisions required to be made or actions required to be taken with respect to the operation of its business, provided that such disclosure is not otherwise prohibited by reason of a confidentiality obligation owed to a third party for which a waiver could not be obtained or is with respect to customer specific or competitively sensitive information relating to areas or projects where Acetex and AT Plastics are competitors;
(j) it shall discuss and consider such Pre-Amalgamation Steps as may be proposed by the other Party hereto and implement such Pre-Amalgamation Steps that it considers to be in the best interests of its shareholders, provided such steps are agreed to in writing by the other Party hereto;
(k) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable Laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such Laws; and
(l) it shall use its reasonable commercial efforts to conduct its affairs so that all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Effective Date as if made thereonTerm without any rights whatsoever.
Appears in 1 contract
Samples: Industrial Lease Agreement (Liuski International Inc /De)
