Parent Interim Operations. Parent covenants and agrees as to ------------------------- itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless the Company shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement or in Section 6.2 of the Parent Disclosure Letter): (a) the business of it and its Subsidiaries shall be conducted in the ordinary and usual course consistent with past practice and it and its Subsidiaries shall use all reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates; (b) it shall not (i) amend the articles or certificate of incorporation or regulations or bylaws of Parent or any of its Subsidiaries; (ii) split, combine or reclassify the outstanding shares of capital stock of Parent or any of its Subsidiaries; or (iii) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock other than dividends from its direct or indirect wholly owned Subsidiaries and other than regular quarterly cash or "payment in kind" dividends on the Parent Preferred Shares; (c) neither it nor its Subsidiaries will take any action that would be reasonably likely to impede or delay the Transactions or adversely affect the parties' ability to consummate the Transactions; and (d) neither it nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (Ohm Corp), Merger Agreement (International Technology Corp), Merger Agreement (Ohm Corp)
Parent Interim Operations. Parent covenants and agrees as to ------------------------- itself and each of its Subsidiaries that, from and after the date hereof and prior to the Effective Time (unless the Company shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, writing and except as otherwise (i) expressly contemplated by any other section of this Agreement Agreement, (ii) required by applicable Law (it being understood that, insofar as less than 100% of the equity of a Subsidiary of Parent is owned, directly or indirectly, by Parent, nothing in this Section 6.2 shall be deemed to require any such Subsidiary to take any action, or fail to take any action, which action or failure would result in a violation of fiduciary duty under applicable Law), or (iii) set forth in Section 6.2 of the Parent Disclosure Letter):
(a) except as would not reasonably be expected to delay or impede the business consummation of the Merger in any meaningful respect, it and its Subsidiaries Subsidiaries, taken as a whole, shall be conducted conduct their businesses in the ordinary and usual course and, to the extent consistent with past practice and it therewith, each of Parent and its Subsidiaries shall use all its respective commercially reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with material customers, suppliers, reinsurers, distributors, agents, regulators, creditors, rating agencies, lessors, employees and business associates; provided, that Parent and its Subsidiaries may take any action, or omit to take any action, to the fullest extent permitted by any proviso or exception contained in this Section 6.2 (whether or not such action or omission would be considered taken in the ordinary course, consistent with past practice); provided further that, subject to Section 6.7, Parent may coordinate the record and payment date of any regular quarterly dividend so that holders of Common Shares do not receive dividends on both Common Shares and Parent Common Stock received in the Merger in respect of any calendar quarter, provided that any such coordination does not result in the holders of Common Shares receiving a dividend on neither the Common Shares nor the Parent Common Stock received in the Merger in respect of any calendar quarter;
(b) it and its Subsidiaries shall not (i) amend the articles or its certificate of incorporation in a manner that would adversely affect the economic benefits of the Merger to the Company's shareholders or regulations or bylaws of Parent or any of its Subsidiaries; (ii) split, combine or reclassify its issued or authorized share capital unless appropriate adjustment is made to the outstanding shares of capital stock of Parent or any of its Subsidiaries; or (iii) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock other than dividends from its direct or indirect wholly owned Subsidiaries and other than regular quarterly cash or "payment in kind" dividends on the Parent Preferred SharesExchange Ratio;
(c) neither it nor any of its Subsidiaries will take shall enter into any action that agreement or otherwise commence or publicly announce any transaction to sell, transfer, dispose of or acquire any assets, capital stock or business of another Person or business unless such transaction would not reasonably be reasonably likely expected to delay or impede or delay the Transactions or adversely affect consummation of the parties' ability to consummate the Transactions; andMerger in any meaningful respect;
(d) neither it nor any of its Subsidiaries will authorize shall, with the prior approval or Knowledge of any of the individuals listed in Section 5.3(a)(i) of the Parent Disclosure Letter take, or fail to take, any action that would cause any representation or warranty of Parent herein to become untrue;
(e) neither it nor any of its Subsidiaries shall take any corporate action for its winding up, dissolution or reorganization or for the appointment of a receiver, administrator or administrative receiver, trustee or similar officer of all or any of its assets or revenues which are material to Parent and its Subsidiaries, taken as a whole; and
(f) neither it nor any of its Subsidiaries shall authorize, announce an intention to implement, or enter into an agreement to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (American General Corp /Tx/), Merger Agreement (American General Corp /Tx/)
Parent Interim Operations. Parent covenants and agrees Except (i) as to ------------------------- itself and its Subsidiaries that, after the date hereof and prior to the Effective Time (unless the Company shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement or Agreement, (ii) as set forth in Section 6.2 5.2 of the Parent Disclosure Letter):Schedule, (iii) as required by applicable Law (including, but not limited to, the UK Code), or (iv) as consented to in writing by the Company, which consent will not be unreasonably withheld, conditioned or delayed, Parent covenants that, from the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms and the Effective Time:
(a) the business Parent and each of it and its Subsidiaries shall be conducted will (i) conduct business only in the ordinary and usual course of business consistent in all material respects with past practice and it and its Subsidiaries shall (ii) to the extent consistent therewith, use all commercially reasonable best efforts to (A) preserve intact its current business organization intact and organization, (B) maintain its existing relations relationships with its customers and goodwill with customers, suppliers, distributorsand (C) keep available the services of its present executive officers and key employees; provided that no action or failure to take action by Parent or any of its Subsidiaries with respect to matters specifically addressed by any provision of Section 5.2(b) through (i) will constitute a breach under this Section 5.2(a) unless such action or failure to take action would constitute a breach of such provision of Section 5.2(b) through (i), creditors, lessors, employees and business associatesas applicable;
(b) it shall Parent will not amend the Parent Articles, other than to implement the transactions contemplated by this Agreement;
(c) Parent will not, and will not permit any of its Subsidiaries to, (i) amend the articles authorize or certificate of incorporation pay any dividends on or regulations make any distribution with respect to its outstanding Parent Ordinary Shares or bylaws other equity securities (whether in cash, assets, stock or other securities of Parent or its Subsidiaries), except dividends and distributions made by a direct or indirect wholly owned Subsidiary of Parent to its parent or (ii) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, any outstanding Parent Ordinary Shares or other equity securities (except in respect of any purchase price or applicable Tax withholding in connection with the exercise or settlement of any Parent Stock Option or Parent Unit);
(d) except for (i) transactions exclusively among Parent and its direct or indirect wholly owned Subsidiaries or among Parent’s direct or indirect wholly owned Subsidiaries, (ii) issuances of Parent Ordinary Shares in respect of any Parent Stock Options, Parent Units or other equity-based awards granted under any Parent Benefit Plans outstanding on the date of this Agreement, (iii) issuances of Parent Stock Options, Parent Units or other equity-based awards granted under any Parent Benefit Plans in the ordinary course of business (the ordinary course including, for this purpose, the employee salary, bonus and equity compensation review process and related adjustments substantially as conducted each year), (iv) grants of Parent Ordinary Shares or securities convertible into or exchangeable for Parent Ordinary Shares in lieu of director’s fees or (v) pledges, security interests or Liens for collateral security purposes in connection with the Financing (including any replacement Financing), Parent will not, and will not permit any of its Subsidiaries; Subsidiaries to (iix) issue, sell, pledge, dispose of or encumber (other than Permitted Liens), or authorize the issuance, sale, pledge, disposition or encumbrance (other than Permitted Liens) of, any Parent Ordinary Shares or any securities convertible into or exchangeable for Parent Ordinary Shares, or any rights, warrants or options to acquire Parent Ordinary Shares or convertible or exchangeable securities with respect to Parent Ordinary Shares, or (y) split, combine or reclassify the Parent Ordinary Shares or any outstanding shares of capital stock of any of Parent’s Subsidiaries;
(e) Parent or will not, and will not permit any of its Subsidiaries; Subsidiaries to, incur, assume, guarantee or prepay any indebtedness for borrowed money (iiidirectly, contingently or otherwise), or make any material loans, advances or capital contributions to, or investments in, any other Person, except for (i) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock other than dividends from indebtedness for borrowed money among Parent and its direct or indirect wholly owned Subsidiaries or among Parent’s direct or indirect wholly owned Subsidiaries, (ii) letters of credit issued and maintained in the ordinary course of business consistent with past practices, (iii) pursuant to any factoring arrangements in the ordinary course of business consistent with past practices, (iv) the Financing (including any replacement Financing) and (v) any other than regular quarterly cash or "payment indebtedness for borrowed money in kind" dividends on the Parent Preferred Sharesan amount not to exceed $100,000,000 in aggregate principal amount;
(cf) neither it nor its Subsidiaries Parent will take any action that would be reasonably likely to impede or delay the Transactions or adversely affect the parties' ability to consummate the Transactions; and
(d) neither it nor not, and will not permit any of its Subsidiaries to, acquire (except in respect of any mergers, consolidations, business combinations among Parent and its direct or indirect wholly owned Subsidiaries or among Parent’s direct or indirect wholly owned Subsidiaries), including by merger, amalgamation, consolidation or other business combination, acquisition of stock or assets, tender offer, exchange offer or similar transaction, any corporation, partnership, limited liability company, other business organization or any division thereof, or any equity interests thereof, or any material amount of assets in connection with acquisitions or investments, except for any such acquisitions for consideration not to exceed $100,000,000 in the aggregate for all such acquisitions and that would not reasonably be expected to (i) impose any material delay in the obtaining of, or increase the risk of not obtaining, any authorization, consent, order, declaration or approval of the Merger, in connection with, or in compliance with, the HSR Act or other Antitrust Laws, or the expiration or termination of any applicable waiting period thereof, or Exon-Fxxxxx and the rules and regulations thereunder and any Law applicable to the CFIUS Approval, (ii) delay, impede or prevent the timely funding of the Financing, or the satisfaction of the conditions to obtaining the Financing, or (iii) otherwise materially delay, prevent or impede the consummation of the Merger and the other transactions contemplated hereby;
(g) except in the ordinary course of business consistent in all material respects with past practice, Parent will authorize or enter into an agreement to do not, and will not permit any of its Subsidiaries to, sell, transfer, mortgage, encumber or otherwise dispose of any of its tangible assets, tangible properties or businesses, except for (i) sales, transfers, mortgages, encumbrances or other dispositions in the foregoing.ordinary course of business (including dispositions of inventory or of obsolete equipment),
Appears in 1 contract
Samples: Merger Agreement (Atmel Corp)
Parent Interim Operations. Parent covenants and agrees as to ------------------------- itself and each of its Subsidiaries that, from and after the date hereof and prior to the Effective Time (unless the Company shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, writing and except as otherwise (i) expressly contemplated by any other section of this Agreement Agreement, (ii) required by applicable Law (it being understood that, insofar as less than 100% of the equity of a Subsidiary of Parent is owned, directly or indirectly, by Parent, nothing in this Section 6.2 shall be deemed to require any such Subsidiary to take any action, or fail to take any action, which action or failure would result in a violation of fiduciary duty under applicable Law), or (iii) set forth in Section 6.2 of the Parent Disclosure Letter):
(a) the business of it and its Subsidiaries shall be conducted conduct their businesses in the ordinary and usual course course, consistent with past practice and it practice, and, to the extent consistent therewith, each of Parent and its Subsidiaries shall use all its respective commercially reasonable best efforts to preserve its business organization intact and maintain its existing relations and goodwill with material customers, suppliers, reinsurers, distributors, agents, regulators, creditors, rating agencies, lessors, employees and business associates; provided, that Parent and its Subsidiaries may take any action, or omit to take any action, to the fullest extent permitted by any proviso or exception contained in this Section 6.2 (whether or not such action or omission would be considered taken in the ordinary course, consistent with past practice);
(b) neither it nor its Subsidiaries shall not (i) except as required to effect the transactions contemplated by this Agreement, amend the its memorandum or articles of association or certificate of incorporation or regulations or bylaws of Parent or any of its Subsidiariesother constitutional documents; (ii) split, combine or reclassify its issued or authorized share capital unless appropriate adjustment is made to the outstanding shares of capital stock of Parent or any of its SubsidiariesExchange Ratio; or (iii) except as permitted under Section 6.20 below, authorize, declare, set aside or pay any dividend payable in cash, stock shares or property in respect of any capital stock of its shares other than (A) dividends from its direct or indirect wholly wholly-owned Subsidiaries; (B) dividends by a Subsidiary that is partially owned by the Parent or any of its Subsidiaries, in the ordinary course, consistent with past practice; provided, that Parent or any such Subsidiary receives or is to receive its proportionate share thereof; (C) subject to Section 6.20 below, regular final and interim cash dividends paid by Parent, determined in a manner, and with record and payment dates, consistent with past practice; or (D) issuances of stock scrip in lieu of cash dividends consistent with past practice; or (iv) subject to prior consultation with the Company and subject in all cases to the provisions of Section 6.17 below, purchase, redeem or otherwise acquire, or permit any of its Subsidiaries and to purchase or otherwise acquire, any of its shares or any securities convertible into or exchangeable or exercisable for any of its shares, other than regular quarterly cash purchases, redemptions or "payment other acquisitions not to exceed $200,000,000 in kind" dividends on the Parent Preferred Sharesaggregate, or otherwise reduce or reorganize its capital;
(c) neither it nor its Subsidiaries will take shall (i) except for issuances, sales or dispositions of shares of Subsidiaries to Parent or its wholly-owned Subsidiaries, issue, sell, pledge, dispose of or encumber any action shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights or agreements of any kind to acquire, or the value of which is determined in reference to, its shares of any class or any Parent Voting Debt (other than (1) subject to prior consultation with the Company, issuances, sales and dispositions to third parties which, in the aggregate, do not exceed $150,000,000, (2) grants of options or rights in the ordinary course, consistent with past practice, or issuances of shares upon exercise of options or rights granted, under any Parent Share Schemes or Parent Subsidiaries Share Schemes or share schemes set forth in Section 6.2 of the Parent Disclosure Letter; (ii) other than in the ordinary course, consistent with past practice, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets that would are, individually or in the aggregate, material in relation to Parent and its Subsidiaries, taken as a whole, (including shares of any of its Subsidiaries); or (iii) except as set forth in Section 6.2(c) of the Parent Disclosure Letter (but, in such cases, still subject to the proviso below), by any means, make any acquisition of, or investment in, assets or stock of any other Person (other than investments (q) in the ordinary course of its insurance, annuity, asset management or investment businesses, (r) in customer accounts held in the ordinary course, or (s) in any general account or life fund or otherwise in the ordinary course to offset insurance liabilities), in excess of $1,500,000,000 in the aggregate; provided, however, that no such acquisition shall (x) meaningfully and adversely impair its ability to consummate, or meaningfully delay the consummation of, the transactions contemplated by this Agreement, (y) be financed through the sale or issuance of shares of any class of Parent or its Subsidiaries, or (z) be reasonably likely to impede cause a material rating held by Parent to be modified, qualified, lowered or delay placed under surveillance for a possible downgrade; provided, further, that acquisitions which include more than de minimis North American operations shall (A) until the Transactions or adversely affect aggregate purchase price for all such acquisitions exceeds $500,000,000, be subject to prior consultation with the parties' ability Company, and (B) thereafter, be subject to consummate the Transactions; andprior approval of the Company, which approval will not be unreasonably withheld;
(d) neither it nor any of its Subsidiaries will authorize shall (i) except to the extent provided in appropriately identified reserves, settle or compromise any claims or litigation in a manner material to Parent and its Subsidiaries taken as a whole; or (ii) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), which, in the case of clause (ii) would, individually or in the aggregate, be material to Parent and its Subsidiaries taken as a whole, other than the payment, discharge or satisfaction of claims, liabilities or obligations in the ordinary course, as required by contract or applicable Law, or to the extent provided for in appropriately identified reserves;
(e) except in the ordinary course, consistent with past practice, neither it nor any of its Subsidiaries shall (i) modify in any material respect, amend in any material respect or terminate any of its Material Contracts or (ii) waive, release or assign any rights or claims, which, individually or in the aggregate, are material to Parent and its Subsidiaries taken as a whole;
(f) neither it nor any of its Subsidiaries shall make any material Tax election (other than in the ordinary course, consistent with past practice, or unless required by applicable Law), enter into any settlement or compromise of any Tax liability which, individually or in the aggregate, is material to Parent and its Subsidiaries taken as a whole, or permit any insurance or reinsurance policy naming it as a beneficiary or loss-payable payee, which, individually or in the aggregate, is material to Parent and its Subsidiaries, taken as a whole, to be canceled or terminated except in the ordinary course, consistent with past practice, except to the extent provided for in reserves;
(g) neither it nor any of its Subsidiaries shall file any amended Tax Returns if the result of such amendment would increase Parent's Tax liability in a manner material to the Parent and its Subsidiaries taken as a whole, except to the extent provided for in reserves or otherwise required by applicable Law;
(h) except as required by applicable Law, neither it nor any of its Subsidiaries shall enter into any agreement containing any provision or covenant limiting in any respect the ability of Parent or any Subsidiary or affiliate to (i) sell any products or services to any other Person, (ii) engage in any line of business, or (iii) compete with any Person (other than, in the case of clauses (i), (ii) and (iii), any such provisions which, individually or in the aggregate, are not material to Parent and its Subsidiaries, taken as a whole);
(i) except as required by applicable Law, neither it nor any of its Subsidiaries shall in any material respect change or fail to comply with investment, risk management and other policies of Parent;
(j) neither it nor any of its Subsidiaries shall, with the prior approval or knowledge of any of the individuals listed in Section 5.3(a)(i) of the Parent Disclosure Letter take, or fail to take, any action that would cause any representation or warranty of the Parent herein to become untrue;
(k) neither it nor any of its Subsidiaries shall take any corporate action for its winding up, dissolution or reorganization or for the appointment of a receiver, administrator or administrative receiver, trustee or similar officer of all or any of its assets or revenues which are material to Parent and its Subsidiaries, taken as a whole; and
(l) neither it nor any of its Subsidiaries shall authorize, announce an intention to implement, or enter into an agreement to do any of the foregoing.
Appears in 1 contract
