Absence of Certain Agreements Neither Parent nor any of its Affiliates has entered into any agreement, arrangement or understanding (in each case, whether oral or written), or authorized, committed or agreed to enter into any agreement, arrangement or understanding (in each case, whether oral or written), pursuant to which: (i) (A) any stockholder of the Company (other than Parent and its Affiliates) would be entitled to receive consideration of a different amount or nature than the Per Share Merger Consideration, (B) except as set forth in Section 6.13, any stockholder of the Company agrees to vote to adopt this Agreement or the Merger or any stockholder of the Company agrees to vote against any Superior Proposal; or (ii) any current employee of the Company has agreed to (x) remain as an employee of the Company or any of its Subsidiaries following the Effective Time (other than pursuant to any employment Contracts in effect as of the date of this Agreement), (y) contribute or rollover any portion of such employee’s Shares, Company Stock Options, Company Restricted Stock and/or Phantom Stock Units to the Company or its Subsidiaries or Parent or any of its Affiliates or (z) receive any capital stock or equity securities of the Company or any of its Subsidiaries or Parent or any of its Affiliates.
Notice of Certain Costs Notwithstanding anything in this Agreement to the contrary, to the extent any notice required by Section 2.10, 2.11, 3.5 or 5.4 is given by any Lender more than 180 days after such Lender has knowledge (or should have had knowledge) of the occurrence of the event giving rise to the additional cost, reduction in amounts, loss, tax or other additional amounts described in such Sections, such Lender shall not be entitled to compensation under Section 2.10, 2.11, 3.5 or 5.4, as the case may be, for any such amounts incurred or accruing prior to the 181st day prior to the giving of such notice to the Borrower.
Delivery of Certain Collateral Contemporaneously or prior to the execution of this Agreement, each Debtor shall deliver or cause to be delivered to the Agent (a) any and all certificates and other instruments representing or evidencing the Pledged Securities, and (b) any and all certificates and other instruments or documents representing any of the other Collateral, in each case, together with all Necessary Endorsements. The Debtors are, contemporaneously with the execution hereof, delivering to Agent, or have previously delivered to Agent, a true and correct copy of each Organizational Document governing any of the Pledged Securities.
Disclosure of Certain Matters Each of GSME, GSME Sub, Plastec and each of the Plastec Shareholders will provide the others with prompt written notice of any event, development or condition that (a) would cause any of such Party’s representations and warranties to become untrue or misleading or which may affect its ability to consummate the transactions contemplated by this Agreement, (b) had it existed or been known on the date hereof would have been required to be disclosed under this Agreement, (c) gives such Party any reason to believe that any of the conditions set forth in Article VII will not be satisfied, (d) is of a nature that would be reasonably likely to have a Material Adverse Effect on Plastec, or (e) would require any amendment or supplement to the Proxy Statement. The Parties shall have the obligation to supplement or amend the Plastec Schedule, the Plastec Shareholders Schedule and GSME Schedule (the “Disclosure Schedules”) being delivered concurrently with the execution of this Agreement and annexed hereto with respect to any matter hereafter arising or discovered which, if existing or known at the date of this Agreement, would have been required to be set forth or described in the Disclosure Schedules. The obligations of the Parties to amend or supplement the Disclosure Schedules being delivered herewith shall terminate on the Closing Date. Notwithstanding any such amendment or supplementation, for purposes of Sections 7.2(a), 7.3(a), 8.1(a)(i), 9.1(d) and 9.1(e), the representations and warranties of the Parties shall be made with reference to the Disclosure Schedules as they exist at the time of execution of this Agreement, subject to changes expressly contemplated by this Agreement or which are set forth in the Disclosure Schedules as they exist on the date of this Agreement.
Termination of Certain Agreements On and as of the Closing, the Company shall take all actions necessary to cause the Contracts listed on Schedule 6.04 to be terminated without any further force and effect and without any cost or other liability or obligation to the Company or any of its Subsidiaries, and there shall be no further obligations of any of the relevant parties thereunder following the Closing.
Modification of Certain Agreements Each Credit Party will not, and will not permit any of its Subsidiaries or Affiliates to, consent to any amendment, supplement, waiver or other modification of, or enter into any forbearance from exercising any rights with respect to the terms or provisions contained in (a) any Organization Documents of a Credit Party, in each case, other than any amendment, supplement, waiver or modification or forbearance that could not reasonably be expected to be materially adverse to the interests of the Secured Parties (except with the consent of the Required Lenders) or if required by law, (b) any document, agreement or instrument evidencing or governing any Indebtedness that has been subordinated to the Obligations in right of payment or secured by any Liens that have been subordinated in priority to the Liens of Agent unless such amendment, supplement, waiver or other modification is permitted under the terms of the subordination or intercreditor agreement applicable thereto or could not reasonably be expected to be materially adverse to the interests of the Secured Parties (it being understood that the foregoing shall not prohibit the refinancing, replacement or exchange of such Indebtedness), or (c) the Acquisition Agreement and the Ancillary Agreements (as defined in the Acquisition Agreement) (collectively, the “Acquisition Documents”), in each case, other than any amendment, supplement, waiver or modification or forbearance that could not reasonably be expected to be adverse to the interests of the Secured Parties (except with the consent of the Required Lenders); provided, that, any amendment, supplement, waiver or modification or forbearance of the Acquisition Documents such that any Credit Party or any of their Subsidiaries become directly or indirectly liable with respect to the Deferred Purchase Price shall be deemed adverse to the interests of the Secured Parties.
PROVISION OF CERTAIN INFORMATION BY SUBADVISER The Subadviser will promptly notify the Adviser in writing of the occurrence of any of the following events:
a. the Subadviser fails to be registered as an investment adviser under the Investment Advisers Act or under the laws of any jurisdiction in which the Subadviser is required to be registered as an investment adviser in order to perform its obligations under this Agreement;
b. the Subadviser is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, involving the affairs of the Trust; and
c. any change in actual control or management of the Subadviser or the portfolio manager of any Portfolio.
Absence of Certain Changes and Events Except as set forth on Schedule 3.14, since the date of the Interim Financial Statements, and, to the extent not fully reflected in the Interim Financial Statements, since the date of the Year End Financial Statements, the Company has conducted its business only in the ordinary course of business consistent with past practices, and there has not been any:
(a) change in the Company’s authorized or issued capital stock or the ownership thereof; grant of any stock option or right to purchase shares of capital stock of the Company; issuance of any security convertible into such capital stock; grant of any registration rights; purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock;
(b) amendment to the Organizational Documents of the Company;
(c) acquisition of any stock or business of, or merger or consolidation with, another Person, or any action with respect to liquidating, dissolving, recapitalizing, reorganizing or otherwise winding up the Company’s business;
(d) payment or increase by the Company of any bonuses, salaries, or other compensation to any stockholder, director, officer, or employee (except, with respect to non-executive employees, in the ordinary course of business consistent with past practice) or entry into any new, or material amendment of any existing, employment, consulting, independent contractor, severance, change of control or similar Contract;
(e) adoption of any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan;
(f) damage to or destruction or loss of any asset or property of the Company, whether or not covered by insurance, which has had, or would reasonably be expected to have, a Material Adverse Effect on the Company;
(g) sale (other than sales of Inventory in the ordinary course of business), lease, license, distribution or other disposition of any material asset(s) or property of the Company, or any waiver, release, transfer or assignment of any right of material value, or any mortgage, pledge, or imposition of any lien or other Encumbrance on any material asset(s) or property of the Company except as noted on Schedule 3.6 or except as explicitly permitted under Section 6.2 or required under any other provision of this Agreement;
(h) entry into any Contract or other agreement providing for payments by the Company in an aggregate amount exceeding $25,000 that is not terminable by the Company, without penalty, upon sixty (60) days notice, with the exception of agreements for the purchase of fuel entered into by the Company in the ordinary course of its business and consistent with past practice;
(i) any capital expenditure in excess of $25,000;
(j) change in any annual accounting period or accounting methods used by the Company;
(k) any modification, termination or amendment to a Material Contract or waiver of any right or claim thereunder;
(l) loss of use of any Company Intellectual Property Assets;
(m) change in methods, practices, principles or timing regarding the purchase of inventory or the payment or accrual of operating expenses, including accounts payable; or
(n) entry into any Contract, whether oral or written, by the Company to do any of the foregoing.
Notice of Certain Matters (a) From the date hereof until the Closing, each Party shall promptly notify the other Parties of any occurrence of which it is aware that is reasonably likely to result in any of the conditions set forth in Article VI becoming incapable of being satisfied; provided, however, that any Party’s failure to give notice of any such occurrence as required pursuant to this Section 5.3(a) shall not be (i) deemed to be a breach of the covenant contained in this Section 5.3(a), but instead shall (if applicable) constitute only a breach of the applicable underlying representation, warranty, covenant or agreement, or (ii) taken into account in determining whether the conditions to Closing set forth in Article VI have been satisfied.
(b) Without limitation to Section 5.3(a), if there occurs any facts, events or circumstances after the date hereof and before the Closing that constitutes a material breach of any representations or warranties of the Warrantors that are to be repeated at the Closing, the Warrantors shall promptly execute a certificate detailing such facts, events or circumstances and deliver such certificate to Orchid Asia, whereupon the Disclosure Schedule shall be deemed to have been updated with such facts, events or circumstances as set forth in such certificate (but such update shall be deemed to qualify only the representations and warranties (other than the Warrantor Fundamental Warranties) that are repeated at the Closing). Upon and after any such update to the Disclosure Schedule,
(i) if the Warrantors acknowledge that such facts, events or circumstances are adverse to the interests of the Group Companies or Orchid Asia in a material respect, Orchid Asia shall be entitled to terminate this Agreement by written notice to the Company, and
(ii) if Orchid Asia and the Warrantors, in their respective reasonable beliefs, disagree as to whether such facts, events or circumstances are adverse to the interests of the Group Companies or Orchid Asia in a material respect, Orchid Asia and the Warrantors shall consult with each other in good faith with a view to resolving such disagreement (including agreeing on any adjustments to the terms of the transactions contemplated hereby that may be necessary) as soon as reasonably practicable, provided, however, that, notwithstanding anything herein to the contrary, Orchid Asia (x) shall not be obligated to proceed with the Closing unless and until Orchid Asia and the Warrantors have resolved such disagreement through mutual consultation, and (y) shall be entitled to terminate this Agreement by written notice to the Company at any time after the Long Stop Date if the Closing shall not have occurred as of the Long Stop Date.
Absence of Certain Business Practices Neither the Seller, nor any Affiliate of the Seller, nor to the knowledge of the Seller, any agent or employee of the Seller, any other Person acting on behalf of or associated with the Seller, or any individual related to any of the foregoing Persons, acting alone or together, has: (a) received, directly or indirectly, any rebates, payments, commissions, promotional allowances or any other economic benefits, regardless of their nature or type, from any customer, supplier, trading company, shipping company, governmental employee or other Person with whom the Seller has done business directly or indirectly; or (b) directly or indirectly, given or agreed to give any gift or similar benefit to any customer, supplier, trading company, shipping company, governmental employee or other Person who is or may be in a position to help or hinder the business of the Seller (or assist the Seller in connection with any actual or proposed transaction) which (i) may subject the Seller to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (ii) if not given in the past, may have had an adverse effect on the Seller or (iii) if not continued in the future, may adversely affect the assets, business, operations or prospects of the Seller or subject the Seller to suit or penalty in any private or governmental litigation or proceeding.
