SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except as otherwise explicitly contemplated by this Agreement (including as contemplated by the Domestication Merger), or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law: (i) change, modify or amend the Trust Agreement, the Warrant Agreement or the Governing Documents of SPAC, or seek any approval from SPAC Shareholders with respect to any such change, modification or amendment, in each case except as contemplated by the Transaction Proposals; (ii) (x) make or declare any dividend or distribution to SPAC Shareholders or make any other distributions in respect of any of SPAC Ordinary Shares or other share capital or equity interests of SPAC, (y) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares or other share capital or equity interests in SPAC, or (z) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPAC, other than a redemption of SPAC Class A Ordinary Shares made as part of SPAC Share Redemptions or in connection with the Domestication Merger; (iii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; (iv) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months); (v) enter into, renew or amend in any material respect any transaction or Contract with any SPAC Related Party (other than any Working Capital Loans incurred in the ordinary course of business not to exceed $1,000,000 in the aggregate); (vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate); (vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based awards with respect to SPAC Securities or other equity interests in SPAC, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or (viii) enter into any agreement to do any action prohibited under this Section 9.3(a). (b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action: (i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger or acquire any assets prior to the Domestication Merger; (ii) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions; (iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions; (v) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock or other securities of Merger Sub 1 or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1; (vi) liquidate, dissolve, reorganize or otherwise wind up the business and operations of Merger Sub 1; (vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3; (viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or (ix) enter into any agreement or otherwise make a binding commitment to do any of the actions prohibited by this Section 9.3(b). (c) During the Interim Period, each of SPAC and Merger Sub 1 shall comply with, and continue performing under, as applicable, their respective Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or Contracts to which SPAC or Merger Sub 1 may be a party.
Appears in 2 contracts
Samples: Business Combination Agreement (Eleusis Inc.), Business Combination Agreement (Silver Spike Acquisition Corp II)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except (1) as otherwise explicitly expressly contemplated by this Agreement (including as contemplated by the Domestication MergerPIPE Investment, Section 7.3 of the SPAC Disclosure Letter, or the Mergers), or the Ancillary Agreements, (2) as required by Law or Governmental Order (including for this purpose, any COVID-19 Measure), or for COVID-19 Actions, (3) in connection with the extension of the SPAC Business Combination Deadline as expressly contemplated by and described in the definitive proxy statement filed by SPAC on August 26, 2022 (or any supplements, amendments or modifications thereto) or (4) as consented to by Epic and the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied)) (A) SPAC shall, and shall cause Merger Sub 1 to, use commercially reasonable efforts to operate its business in the ordinary course and consistent with past practice. Without limiting the generality of business; provided, that none of the foregoingforegoing provisions shall prevent SPAC or Merger Sub 1 from taking or omitting to take any action to prevent or mitigate the effects of any damage to property or injury to, except as consented or to by protect the Company health or welfare of, employees, directors, officers or agents in writing emergency situations, and (which consent shall not be unreasonably conditioned, withheld, delayed or denied), B) SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Lawand shall cause Merger Sub 1 not to:
(i) change, modify or amend the Trust Agreement, the Warrant Agreement or any other agreement related to the Governing Trust Account or the Organizational Documents of SPAC, SPAC or seek any approval from SPAC Shareholders with respect to any such change, modification or amendment, in each case except as contemplated by the Transaction ProposalsMerger Sub 1;
(ii) (x) make make, set aside, or declare any dividend or distribution to the equityholders of SPAC Shareholders or Merger Sub 1 or make any other distributions in respect of any of SPAC Ordinary Shares SPAC’s or other Merger Sub 1’s capital stock, share capital or equity interests of SPAC, interests;
(yiii) split, combine, reclassify reclassify, recapitalize or otherwise amend any terms of any SPAC Ordinary Shares shares or other share series of SPAC’s or Merger Sub 1’s capital stock or equity interests in SPAC, or interests;
(ziv) purchase, repurchase, redeem or otherwise acquire acquire, directly or indirectly, any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACSPAC or Merger Sub 1, other than a redemption of shares of SPAC Class A Ordinary Shares Common Stock made as part of SPAC Share Redemptions or Redemptions;
(v) other than additional SPAC Convertible Notes in connection with Working Capital Loans permitted by Section 7.3(a)(vi), issue, deliver, sell, authorize, pledge, amend, exchange, settle or otherwise encumber, or agree to any of the Domestication Mergerforegoing with respect to, any shares of capital stock or other equity securities or ownership interests, or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, in each case, of SPAC or any of its Subsidiaries;
(iiivi) takeother than as expressly required by the Support and Non-Redemption Agreement and for Working Capital Loans not exceeding an aggregate amount equal to $200,000, enter into, renew or fail to takeamend in any material respect, any action if such actiontransaction or Contract with an Affiliate of SPAC (including, for the avoidance of doubt, (x) the Sponsor, and (y) any Person in which the Sponsor has a direct or failure to take such actionindirect legal, would reasonably be expected to prevent, impair contractual or impede the Intended Tax Treatmentbeneficial ownership interest of five percent (5%) or greater);
(ivvii) (A) make or change any material election in respect of material Taxes, (AB) materially amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of TaxesReturn, (C) enter into any material closing agreement within the meaning in respect of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) material Taxes or enter into any Tax indemnity, Tax sharing or Tax allocation or similar agreement in respect of material Tax Sharing AgreementTaxes (other than any customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes), (D) settle or consent surrender any right to any claim a material claim or assessment in respect refund of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation limitations period applicable to any material Tax claim or assessment, or (F) settle any claim or assessment in respect of material Taxes or Taxes, except, in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months);
(v) enter intoeach case, renew or amend in any material respect any transaction or Contract with any SPAC Related Party (other than any Working Capital Loans incurred in the ordinary course of business not to exceed $1,000,000 in the aggregate);
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate);
(viiviii) knowingly take or cause to be taken, or knowingly fail to take or cause to be taken, any action, where such action or failure to act could reasonably be expected to prevent (x) the SPAC Merger from qualifying for the SPAC Merger Intended Tax Treatment, (y) the Sponsor Exchange from qualifying for the Exchange Intended Tax Treatment, or (z) the Company Merger and the PIPE Investment from qualifying for the Company Merger Intended Tax Treatment;
(ix) acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all or a material portion of the equity interests in or assets of, or form or enter into, as applicable, any corporation, partnership, association, joint venture or other business organization or division thereof;
(x) incur or assume any Indebtedness for borrowed money, or guarantee any Indebtedness for borrowed money of another Person;
(xi) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based equity-based awards with respect to SPAC Securities or other equity interests in SPACnot outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the SPAC Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(xii) adopt a plan of, or otherwise enter into or effect, a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the business and operations of SPAC or Merger Sub 1;
(xiii) hire or engage any individual; adopt any Benefit Plan or enter into or adopt any Collective Bargaining Agreement (or enter into any other material commitment with any Labor Organization);
(xiv) except as required by Law or GAAP, make any material changes to its accounting methods, principles or practices;
(xv) enter into, renew, modify or revise any material Contract;
(xvi) waive, release, settle, compromise or otherwise resolve any Legal Proceeding relating to SPAC or Merger Sub 1 or to their respective properties or assets, except where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;
(xvii) acquire any ownership interest in any real property; or
(viiixviii) enter into any agreement authorize, commit or agree to do take, whether in writing or otherwise, any action prohibited under this Section 9.3(a)7.3.
(b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger or acquire any assets prior to the Domestication Merger;
(ii) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(v) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock or other securities of Merger Sub 1 or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1;
(vi) liquidate, dissolve, reorganize or otherwise wind up the business and operations of Merger Sub 1;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ix) enter into any agreement or otherwise make a binding commitment to do any of the actions prohibited by this Section 9.3(b).
(c) During the Interim Period, each of SPAC and Merger Sub 1 shall comply with, and continue performing under, as applicable, their respective Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or Contracts to which SPAC or Merger Sub 1 may be a party.
Appears in 1 contract
Samples: Business Combination Agreement (Horizon Acquisition Corp II)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except as otherwise explicitly contemplated by this Agreement or the Ancillary Agreements (including as contemplated by the Domestication Merger)PIPE Investment) as required by Law, as set forth on Section 7.2 of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall use reasonable efforts to operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as set forth on Section 7.2 of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law:
(ia) form or establish any Subsidiary;
(b) seek any approval from the SPAC Shareholders, to change, modify or amend the Trust Agreement, the Warrant Agreement or the Governing Documents of SPAC, or seek any approval from SPAC Shareholders with respect to any such change, modification or amendment, in each case except as contemplated by the SPAC Transaction Proposals;
(iic) except as contemplated by the SPAC Transaction Proposals, (xA) make make, declare, set a record date for or declare pay any dividend or distribution to the SPAC Shareholders or make make, declare, set a record date for or declare any other distributions in respect of any of SPAC Ordinary Shares or other SPAC’s share, share capital or equity interests of SPACinterests, (yB) splitsubdivide, combineconsolidate, reclassify or otherwise amend any terms of any SPAC Ordinary Shares or other of SPAC’s share capital or equity interests in SPACinterests, or (zC) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPAC, other than a redemption of SPAC Class A Ordinary Shares made as part of the SPAC Share Redemptions or in connection with the Domestication MergerShareholder Redemptions;
(iiid) take, or fail to take, take any action if such action, or knowingly fail to take any action, where such action or failure to take such action, would act could reasonably be expected to prevent, impair or impede the Intended Tax TreatmentTreatment of the Transactions, the TCO Restructuring or the Business Combination;
(iv) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months);
(ve) enter into, renew or amend in any material respect respect, any transaction or Contract with an Affiliate of SPAC (including, for the avoidance of doubt, (x) the Sponsor and (y) any SPAC Related Party Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(f) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or guaranty any debt securities of another Person, other than any Working Capital Loans indebtedness for borrowed money or guarantee (x) incurred in the ordinary course of business not to exceed $1,000,000 consistent with past practice, (y) in the aggregate)respect of any Working Capital Loan, or (z) in respect of a SPAC Transaction Expense;
(vig) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of SPAC (which the Parties parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregateLoan);
(viih) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based equity-based awards with respect to SPAC Securities or other equity interests in SPACnot outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(i) liquidate, dissolve, reorganize or otherwise wind up the business or operations of SPAC; or
(viiij) enter into any agreement to do any action prohibited under this Section 9.3(a)7.2.
(b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger or acquire any assets prior to the Domestication Merger;
(ii) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(v) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock or other securities of Merger Sub 1 or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1;
(vi) liquidate, dissolve, reorganize or otherwise wind up the business and operations of Merger Sub 1;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ix) enter into any agreement or otherwise make a binding commitment to do any of the actions prohibited by this Section 9.3(b).
(c) During the Interim Period, each of SPAC and Merger Sub 1 shall comply with, and continue performing under, as applicable, their respective Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or Contracts to which SPAC or Merger Sub 1 may be a party.
Appears in 1 contract
Samples: Business Combination Agreement (Chenghe Acquisition Co.)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except Except (i) as otherwise explicitly contemplated expressly permitted by this Agreement or the Ancillary Agreements (including including, for the avoidance of doubt, as contemplated by pursuant to the Domestication MergerPIPE Subscription Agreements), (ii) as required by applicable Law, Governmental Authority, or any Contract to which SPAC is a party, (iii) as required by Permitted COVID-19 Measures, (iv) as set forth on Section 7.3(a) of the SPAC Disclosure Schedules, (v) for the incurrence of SPAC Transaction Expenses or (vi) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), during the Interim Period, SPAC shall use its reasonable best efforts to, and shall cause each of its Subsidiaries to use their reasonable best efforts to, operate its business in the ordinary course Ordinary Course and consistent in compliance with past practice. Without limiting the generality of the foregoingapplicable Laws in all material respects, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC and shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Lawand shall cause each of its Subsidiaries not to:
(i) change, modify or amend the Trust Agreement, the Warrant Agreement or the SPAC’s Governing Documents of SPACDocuments, or seek any approval from the SPAC Shareholders with respect Stockholders to take any such changeaction, modification or amendment, in each case except as contemplated by the Transaction Proposals;
(ii) change, modify or amend the SPAC Warrant Agreement, including by reducing the Warrant Price (as defined in the SPAC Warrant Agreement);
(iii) (x) make or declare any dividend or distribution to the SPAC Shareholders Stockholders or make any other distributions in respect of any of SPAC Ordinary Shares or other its capital stock, share capital or equity interests of SPACinterests, (y) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares shares or other share series of its capital stock or equity interests in SPAC, or (z) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACinterests, other than a redemption of SPAC Class A Ordinary Shares Common Stock (prior to the Closing Date) made as part of the SPAC Share Redemptions or in connection with the Domestication Merger;
(iii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax TreatmentRedemptions;
(iv) make merge, consolidate or change amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any material election in respect of Taxesother manner) any other Person or be acquired by any other Person;
(v) except as required by this Agreement, (A) amendmake, modify change, or otherwise change any filed revoke an entity classification election or other material election for U.S. federal income Tax Return in a material respectpurposes for SPAC, (B) adopt settle or change compromise any material accounting method in respect of TaxesU.S. federal, state, local, or non-U.S. Tax liability, (C) enter into change any material closing agreement within the meaning annual Tax accounting period, or adopt, change or revoke any method of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreementaccounting, (D) settle amend any Tax Returns or consent to any material claim or assessment in respect of Taxesfile claims for Tax refunds, (E) enter into any closing agreement, waive or extend any statute of limitations period in respect of an amount of Taxes, settle any Tax claim, audit or assessment, (F) change its jurisdiction of tax residency, (G) surrender or voluntarily allow to expire any right to claim a refund of material TaxesTax refund, offset or other reduction in Tax liability, (FH) file enter into any Tax Return in a manner that is inconsistent with the past practices of SPAC sharing or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute indemnification agreement (other than an extension (i) one that is included in a Contract entered into in the ordinary course of business that is not more than seven primarily related to Taxes, or (7ii) monthswith any other Group Company or any of its current Affiliates), or (I) fail to pay any material Taxes when due;
(vvi) enter into, renew or amend in any material respect respect, any transaction or Contract (A) with an Affiliate of SPAC (including, for the avoidance of doubt, (x) Sponsor and (y) any Person in which Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or more), (B) with any SPAC Related Party Stockholder except as permitted or contemplated by this Agreement or (other than C) between SPAC and any Working Capital Loans incurred in the ordinary course of business not broker, finder, investment banker or financial advisor with respect to exceed $1,000,000 in the aggregate);
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate)Transactions;
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based awards with respect to SPAC Securities or other equity interests in SPAC, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viii) enter into any agreement to do any action prohibited under this Section 9.3(a).
(b) During the Interim Period, except as set forth on Section 9.3(b7.3(a)(vii) of the SPAC Disclosure Letter Schedules, incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities or warrants or other rights to acquire any debt securities or guaranty any debt securities of another Person;
(viii) (A) make any material change in its accounting principles, policies, procedures or methods unless required by an amendment in GAAP made subsequent to the date of this Agreement, as consented agreed to by the Company in writing its independent accountants, or (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(iB) engage in any conduct in a new line of business or activity of engage in any sort whatsoever material commercial activities (other than in connection with to consummate the Domestication Merger or acquire any assets prior to the Domestication MergerTransactions contemplated by this Agreement);
(iiix) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(vA) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock SPAC Capital Stock or other securities of Merger Sub 1 exercisable for or convertible into SPAC Capital Stock or (B) grant any options, warrants, convertible securities warrants or other equity-based awards with respect to SPAC Capital Stock not outstanding on the date of this Agreement and disclosed in documents filed publicly with the SEC or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the SPAC Warrant Agreement, including any amendment, modification or reduction of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1the warrant price set forth therein;
(vix) waive, release, compromise, settle or agree to waive, release, compromise, or settle any Action;
(xi) except as set forth on Section 7.3(a)(xi) of the SPAC Disclosure Schedules, (A) hire, or otherwise enter into any employment, consulting or similar agreement with, any person, (B) grant any increase in the compensation of any current or former officer or director, (C) adopt any benefit plan for the benefit of any current or former officer or director, or (D) materially amend any existing agreement with any current or former officer or director;
(xii) except as set forth on Section 7.3(a)(xii) of the SPAC Disclosure Schedules, make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants, other than business expenses advanced to officers or directors in the Ordinary Course), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any Person;
(xiii) liquidate, dissolve, reorganize or otherwise wind wind-up the its business and operations of Merger Sub 1operations;
(viixiv) acquire split, combine, reclassify, recapitalize or hold otherwise amend any terms of any shares or series of SPAC Capital Stock or equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3interests;
(viiixv) takeexcept as set forth on Section 7.3(a)(xv) of the SPAC Disclosure Schedules, purchase, repurchase, redeem (except for the exercise of the SPAC Share Redemption) or fail to takeotherwise acquire any issued and outstanding share capital, any action if such actionoutstanding shares of capital stock, membership interests or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatmentother equity interests of SPAC; or
(ixxvi) enter into any formal or informal agreement or otherwise make a binding commitment to do any of the actions action prohibited by under this Section 9.3(b)Section 7.3.
(cb) During the Interim Period, each of SPAC and Merger Sub 1 shall comply in all material respects with, and continue performing under, as applicable, their respective its Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or material Contracts to which SPAC or Merger Sub 1 it may be a party.
Appears in 1 contract
Samples: Business Combination Agreement (Bite Acquisition Corp.)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except as otherwise explicitly contemplated by this Agreement (including or the Ancillary Agreements, as contemplated required by Law, as set forth on Section 6.02 of the Domestication Merger)SPAC Disclosure Letter, to the extent that any action is taken or omitted to be taken in response to or related to the actual or anticipated effect on SPAC’s business of COVID-19 or any COVID-19 Measures, in each case in connection with or in response to COVID-19, or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as set forth on Section 6.02 of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law:
(i) change, modify or amend amend, or seek any approval from the SPAC Stockholders to change, modify or amend, the Trust Agreement, any other agreement related to the Warrant Agreement Trust Account or the Governing Documents of SPAC, or seek any approval from SPAC Shareholders with respect to any such change, modification or amendment, in each case except as contemplated by the SPAC Transaction Proposals;
(ii) except as contemplated by the SPAC Transaction Proposals, (xA) make make, declare, set a record date for or declare pay any dividend or distribution to the stockholders of SPAC Shareholders or make make, declare, set a record date for or declare any other distributions in respect of any of SPAC Ordinary Shares or other SPAC’s capital stock, share capital or equity interests of SPACinterests, (yB) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares shares or other share series of SPAC’s capital stock or equity interests in SPACinterests, or (zC) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPAC, other than a redemption of shares of SPAC Class A Ordinary Shares Common Stock made as part of the SPAC Share Redemptions or in connection with the Domestication MergerStockholder Redemptions;
(iii) take(A) make, change or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment;
(iv) make or change revoke any material election in respect of TaxesTax election, (AB) amend, modify or otherwise change any material filed material Tax Return in a material respectReturn, (BC) adopt or request permission of any taxing authority to change any material accounting method in respect of Taxesfor Tax purposes, (CD) enter into any material “closing agreement within the meaning of agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. lawforeign Law) or enter into with any material Tax Sharing AgreementGovernmental Authority, (DE) settle or consent to any material claim or assessment in respect of Taxesany Taxes outside the ordinary course of business, (EF) knowingly surrender or voluntarily allow to expire any right to claim a material refund of material any Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material any Taxes or in respect to any material Tax attribute that would give rise to any claim or assessment of Taxes (other than any extension pursuant to an extension in to file any Tax Returns) or (H) incur any material Tax liabilities outside of the ordinary course of business in a manner that is inconsistent with past practice;
(iv) knowingly take any action, or knowingly fail to take any action, in each case not more than seven (7) months)contemplated by this Agreement and/or any Ancillary Agreements, where such action or failure to act would reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment;
(v) pay, distribute or advance any assets or property to, or waive any provision or fail to enforce any provision of any Contract with, or enter into, renew or amend in any material respect respect, any transaction or Contract with True Wind Capital or any officer, director, employee or Affiliate of SPAC Related Party or True Wind Capital (including, for the avoidance of doubt, (x) the Sponsor and (y) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(vi) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any Working Capital Loans indebtedness for borrowed money or guarantee incurred in the ordinary course of business not consistent with past practice and solely to exceed $1,000,000 in the aggregate)extent any such amount constitutes SPAC Transaction Expenses;
(vivii) (A) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness (including any Working Capital Loans) or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of SPAC (which the Parties parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred Loan) solely to the extent such amount constitutes SPAC Transaction Expenses, (B) create any Liens on any material property or assets of SPAC in the ordinary course of businessconnection with any Indebtedness thereof (other than Permitted Liens), not (C) cancel or forgive any Indebtedness owed to exceed $1,000,000 in the aggregate)SPAC, or (D) make, incur or commit to make or incur any capital expenditures;
(viiviii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based equity-based awards with respect to SPAC Securities or other equity interests in SPACnot outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any agreements with the Sponsor or the SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(ix) form or establish any Subsidiary;
(x) acquire or agree to acquire (whether by merger, consolidation or acquisition of securities or a substantial portion of the assets of) any corporation, partnership, association or other business organization or division or assets thereof;
(xi) commence, release, assign, compromise, settle or agree to settle any Legal Proceeding;
(xii) except as required by GAAP (or any interpretation thereof) or applicable Law, make any change in accounting methods, principles or practices;
(xiii) (A) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, restructuring, recapitalization, dissolution or winding-up of SPAC or (B) liquidate, dissolve, reorganize or otherwise wind-up the business or operations of SPAC;
(xiv) engage in any new line of business; or
(viiixv) enter into any agreement to do any action prohibited under this Section 9.3(a)6.02.
(b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented shall, and shall cause its Subsidiaries to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger or acquire any assets prior to the Domestication Merger;
(ii) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(v) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock or other securities of Merger Sub 1 or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1;
(vi) liquidate, dissolve, reorganize or otherwise wind up the business and operations of Merger Sub 1;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ix) enter into any agreement or otherwise make a binding commitment to do any of the actions prohibited by this Section 9.3(b).
(c) During the Interim Period, each of SPAC and Merger Sub 1 shall comply with, and continue performing under, as applicable, their respective SPAC’s Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or Contracts to which SPAC or Merger Sub 1 its Subsidiaries may be a party. Nothing contained in this Agreement shall give the Company or SPAC, directly or indirectly, any right to control or direct the operations of the other party prior to the Closing. Prior to the Closing, each of the Company and SPAC shall exercise, consistent with the other terms and conditions of this Agreement, complete control and supervision over their respective businesses.
Appears in 1 contract
Samples: Business Combination Agreement (TWC Tech Holdings II Corp.)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except Except (i) as otherwise explicitly contemplated expressly permitted by this Agreement or the Ancillary Agreements, (including ii) as contemplated required by the Domestication Merger)applicable Law, Governmental Authority, or any Contract to which SPAC is a party, (iii) as required by Permitted COVID-19 Measures, (iv) as set forth on Section 7.3(a) of the SPAC Disclosure Letter, (v) for the incurrence of SPAC Transaction Expenses or (vi) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed, and in any event, such consent shall be deemed given if the Company has not affirmatively denied consent in writing within five (5) Business Days of receipt of SPAC’s written request for consent), during the Interim Period, SPAC shall operate its business in the ordinary course Ordinary Course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law:
(i) (A) change, modify or amend the Trust Agreement, the Warrant Agreement or the SPAC Governing Documents of SPACDocuments, or seek any approval from the SPAC Shareholders with respect Stockholders to do take any such changeaction, modification or amendment, in each case except as contemplated by the Transaction ProposalsProposals or (B) change, modify or amend its Organizational Documents;
(ii) change, modify or amend the SPAC Warrant Agreement, including by reducing the Warrant Price (as defined in the SPAC Warrant Agreement);
(iii) (x) make or declare any dividend or distribution to the SPAC Shareholders Stockholders or make any other distributions in respect of any of SPAC Ordinary Shares or other its capital stock, share capital or equity interests of SPACinterests, (y) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares shares or other share series of its capital stock or equity interests in SPAC, or (z) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACinterests, other than a redemption of SPAC Class A Ordinary Shares Common Stock (prior to the SPAC Merger Effective Time) made as part of the SPAC Share Redemptions or in connection with the Domestication MergerRedemptions;
(iiiiv) merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(v) (A) make, change or revoke any material election in respect of Taxes, except to comply with GAAP or applicable Law, or settle or compromise any material United States federal, state, local or non-United States Tax liability, except in the Ordinary Course, or (B) change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any Tax Returns or file claims for Tax refunds, enter into any closing agreement, waive or extend any statute of limitations period in respect of an amount of Taxes, settle any Tax claim, audit or assessment, or surrender any right to claim a Tax refund, offset or other reduction in Tax liability;
(vi) take, agree to take, or fail to take, any action if such action, or failure to take such action, would that could reasonably be expected to prevent, impair or impede prevent the Transactions from qualifying for the Intended Tax Treatment;Treatment;
(iv) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months);
(vvii) enter into, renew or amend in any material respect respect, any transaction or Contract (A) with any SPAC Related Party (an Affiliate of SPAC, other than any Working Capital Loans incurred in the ordinary course transaction or Contract pursuant to which Sponsor or any of business not its Affiliates provides debt financing to exceed $1,000,000 in the aggregate);
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate);
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based awards with respect to SPAC Securities or other equity interests in SPAC, or (CB) amend, modify or waive any of the material terms or rights set forth in with any SPAC Warrant Stockholder except as permitted or the Warrant Agreement, contemplated by this Agreement including any amendment, modification or reduction of the warrant price set forth therein; orPIPE Subscription Agreement in accordance with Section 6.1;
(viii) enter into incur or assume any agreement Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities or warrants or other rights to do acquire any action prohibited under this Section 9.3(a).
debt securities or guaranty any debt securities of another Person, other than any (ba) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter Indebtedness for borrowed money or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise guarantee expressly contemplated by this Agreement or the Ancillary Agreements (b) debt financing provided by Sponsor or as explicitly contemplated any of its Affiliates to SPAC;
(ix) (A) make any material change in connection with the Transactions its accounting principles, policies, procedures or methods unless required by Law an amendment in GAAP made subsequent to the date hereof, as agreed to by its independent accountants, or in connection with any Permitted Action:
(iB) engage in any conduct in a new line of business or activity of engage in any sort whatsoever material commercial activities (other than in connection with to consummate the Domestication Merger or acquire any assets prior to the Domestication Mergertransactions contemplated by this Agreement);
(iix) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(vA) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock SPAC Capital Stock or other securities of Merger Sub 1 exercisable for or convertible into SPAC Capital Stock, or (B) grant any options, warrants, convertible securities warrants or other rights equity-based awards with respect to SPAC Capital Stock not outstanding on the date of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1this Agreement and disclosed in documents filed publicly with the SEC;
(vixi) waive, release, compromise, settle or agree to waive, release, compromise, or settle any Action except where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;
(A) hire, or otherwise enter into any employment, consulting or similar agreement with, any person, (B) grant any increase in the compensation of any current or former officer or director, (C) adopt any benefit plan for the benefit of any current or former officer or director, or (D) materially amend any existing agreement with any current or former officer or director;
(xiii) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants, other than business expenses advanced to officers or directors in the Ordinary Course), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any Person;
(xiv) liquidate, dissolve, reorganize or otherwise wind wind-up the its business and operations of Merger Sub 1operations;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ixxv) enter into any formal or informal agreement or otherwise make a binding commitment to do any action prohibited under this Section 7.3;
(xvi) split, combine, reclassify, recapitalize or otherwise amend any terms of any shares or series of SPAC’s capital stock or equity interests; or
(xvii) purchase, repurchase, redeem (except for the exercise of the actions prohibited by this Section 9.3(b)SPAC Share Redemption) or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, membership interests or other equity interests of SPAC.
(cb) During the Interim Period, each of SPAC and Merger Sub 1 shall comply in all material respects with, and continue performing under, as applicable, their respective its Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or material Contracts to which SPAC or Merger Sub 1 it may be a party.
Appears in 1 contract
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except Except (i) as otherwise explicitly contemplated expressly permitted by this Agreement or the Ancillary Agreements, (including ii) as contemplated required by the Domestication Merger)applicable Law, Governmental Authority, or any Contract to which SPAC is a party, (iii) as required by Permitted COVID-19 Measures, (iv) as set forth on Section 6.4(a) of the SPAC Disclosure Letter, (v) for the incurrence of SPAC Transaction Expenses or (vi) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed, and in any event, such consent shall be deemed given if the Company has not affirmatively denied consent in writing within five (5) Business Days of receipt of SPAC’s written request for consent), during the Interim Period, SPAC shall operate its business in the ordinary course Ordinary Course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Lawand shall cause its Subsidiaries (including CallCo and ExchangeCo) not to:
(i) (A) change, modify or amend the Trust Agreement, the Warrant Agreement or the SPAC Governing Documents of SPACDocuments, or seek any approval from the SPAC Shareholders with respect Stockholders to take any such changeaction, modification or amendment, in each case except as contemplated by the Transaction ProposalsProposals or (B) change, modify or amend the CallCo Governing Documents or the ExchangeCo Governing Documents, except as is necessary to amend the articles of ExchangeCo to include the ExchangeCo Exchangeable Share provisions set forth on Exhibit J hereto;
(ii) change, modify or amend the SPAC Warrant Agreement, including by reducing the Warrant Price (as defined in the SPAC Warrant Agreement);
(iii) (x) make or declare any dividend or distribution to the SPAC Shareholders Stockholders or make any other distributions in respect of any of SPAC Ordinary Shares or other its capital stock, share capital or equity interests of SPACinterests, (y) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares shares or other share series of its capital stock or equity interests in SPAC, or (z) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACinterests, other than a redemption of SPAC Class A Ordinary Shares Common Stock (prior to the Arrangement Effective Time) made as part of the SPAC Share Redemptions or in connection with the Domestication Merger;
(iii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax TreatmentRedemptions;
(iv) make merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(v) except as necessary to effect the transactions contemplated by the Plan of Arrangement, (A) make, change or revoke any material election in respect of Taxes, (A) amendexcept to comply with GAAP or applicable Law, modify or otherwise change settle or compromise any filed material United States federal, state, local or non-United States Tax Return liability, except in a material respectthe Ordinary Course, or (B) change any annual Tax accounting period, adopt or change any material accounting method of Tax accounting, amend any Tax Returns or file claims for Tax refunds, enter into any closing agreement, waive or extend any statute of limitations period in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect an amount of Taxes, (E) settle any Tax claim, audit or assessment, or surrender or voluntarily allow to expire any right to claim a refund of material TaxesTax refund, (F) file any offset or other reduction in Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months)liability;
(vvi) enter into, renew or amend in any material respect respect, any transaction or Contract (A) with an Affiliate of SPAC (including, for the avoidance of doubt, (x) Sponsor and (y) any Person in which Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or more, but excluding any Working Capital Loans), (B) with any SPAC Related Party Stockholder except as permitted or contemplated by this Agreement including any PIPE Subscription Agreement in accordance with Section 5.1 or (other than C) between SPAC and any Working Capital Loans incurred in the ordinary course of business not broker, finder, investment banker or financial advisor with respect to exceed $1,000,000 in the aggregate);
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate)Transactions;
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based awards with respect to SPAC Securities or other equity interests in SPAC, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viii) enter into any agreement to do any action prohibited under this Section 9.3(a).
(b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger Expense Advancement Agreement and the Promissory Note or any other Working Capital Loans, incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities or warrants or other rights to acquire any assets prior to the Domestication Mergerdebt securities or guaranty any debt securities of another Person;
(iiviii) amend (A) make any material change in its accounting principles, policies, procedures or otherwise change methods unless required by an amendment in GAAP made subsequent to the Governing Documents date of Merger Sub 1 except this Agreement, as otherwise required agreed to implement by its independent accountants, or (B) engage in any conduct in a new line of business or engage in any material commercial activities (other than to consummate the Transactionstransactions contemplated by this Agreement);
(iiiix) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(vA) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock SPAC Capital Stock, CallCo Capital Stock or other ExchangeCo Capital Stock or securities of Merger Sub 1 exercisable for or convertible into SPAC Capital Stock, CallCo Capital Stock or ExchangeCo Capital Stock or (B) grant any options, warrants, convertible securities warrants or other rights equity-based awards with respect to SPAC Capital Stock, CallCo Capital Stock or ExchangeCo Capital Stock not outstanding on the date of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1this Agreement and disclosed in documents filed publicly with the SEC;
(vix) waive, release, compromise, settle or agree to waive, release, compromise, or settle any Action except where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;
(xi) except as set forth on 6.4(a)(xi) of the SPAC Disclosure Letter, (A) hire, or otherwise enter into any employment, consulting or similar agreement with, any person, (B) grant any increase in the compensation of any current or former officer or director, (C) adopt any benefit plan for the benefit of any current or former officer or director, or (D) materially amend any existing agreement with any current or former officer or director;
(xii) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants, other than business expenses advanced to officers or directors in the Ordinary Course), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any Person;
(xiii) liquidate, dissolve, reorganize or otherwise wind wind-up the its business and operations of Merger Sub 1operations;
(viixiv) acquire split, combine, reclassify, recapitalize or hold otherwise amend any terms of any shares or series of SPAC’s capital stock or equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3interests;
(viiixv) takepurchase, repurchase, redeem (except for the exercise of the SPAC Share Redemption) or fail to takeotherwise acquire any issued and outstanding share capital, any action if such actionoutstanding shares of capital stock, membership interests or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatmentother equity interests of SPAC; or
(ixxvi) enter into any formal or informal agreement or otherwise make a binding commitment to do any of the actions action prohibited by under this Section 9.3(b)Section 6.4.
(cb) During the Interim Period, each of SPAC and Merger Sub 1 shall comply in all material respects with, and continue performing under, as applicable, their respective its Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or material Contracts to which SPAC or Merger Sub 1 it may be a party.
Appears in 1 contract
Samples: Business Combination Agreement (CF Acquisition Corp. VI)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except as otherwise explicitly contemplated by this Agreement (including as contemplated or the Ancillary Agreements, required by the Domestication Merger), Law or as consented to by the Company Target Companies in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), use commercially reasonable efforts to conduct and operate its business in the ordinary course and consistent with past practicepractice in all material respects. Notwithstanding anything to the contrary in this Section 8.3, nothing in this Agreement shall prohibit or restrict SPAC from extending, in accordance with the SPAC Governing Documents and the Prospectus, the deadline by which it must complete its initial Business Combination (each, an “Extension”). Without limiting the generality of the foregoing, except as consented to by the Company Target Companies in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law::
(i) change, modify or amend the Trust Agreement, the Warrant Agreement Agreements or the SPAC Governing Documents of SPACDocuments, or seek any approval from the SPAC Shareholders Stockholders with respect to any such change, modification or amendment, amendment in each case a manner that is adverse to the Target Companies;
(ii) except as contemplated by the Transaction Proposals;
SPAC Public Warrant Amendment, (ii) (xA) make or declare any dividend or distribution to the SPAC Shareholders Stockholders or make any other distributions in respect of any of SPAC Ordinary Shares Common Stock or other share capital or equity interests of SPAC, (yB) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares Common Stock or other share capital or equity interests in SPAC, or (zC) directly or indirectly directly or indirectly purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests Equity Interests of SPAC, other than a redemption of shares of SPAC Class A Ordinary Shares Common Stock made as part of the SPAC Share Redemptions or required by the SPAC Governing Documents in connection with order to consummate the Domestication Mergertransactions contemplated hereby;
(iii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment;
(iv) (A) make or change any material election in respect of Taxes, (AB) amend, modify or otherwise change any filed material Tax Return in a any material respect, (BC) adopt or change any material accounting method in respect of Taxes, (CD) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. non-U.S. law) or enter into any material Tax Sharing Agreementsharing agreement, (DE) settle or consent to any material claim or assessment in respect of Taxes, (EF) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (FG) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (GH) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to of any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months)) in each case, if such action would be reasonably expected to have an adverse effect on New PubCo, SPAC, the Target Companies or any of their respective Subsidiaries after the Closing Date;
(v) except pursuant to the SPAC Public Warrant Amendment, enter into, renew or amend in any material respect any transaction or Contract with any SPAC Related Party (other than any Working Capital Loans incurred in the ordinary course of business not to exceed $1,000,000 in the aggregate)Party;
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of connection with the Transactions or in support of the ordinary course operations of SPAC (which which, for the Parties agree avoidance of doubt, shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, business not to exceed $1,000,000 6,500,000 in the aggregate);
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based equity-based awards with respect to SPAC Securities or other equity interests in SPAC, SPAC or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant AgreementAgreements, including any amendment, modification or reduction of the warrant price set forth therein; or, in each case, except as required by the SPAC Governing Documents in order to consummate the Transactions (other than pursuant to the SPAC Public Warrant Amendment);
(viii) except as contemplated by Section 10.6(a) of this Agreement, (A) enter into, adopt or amend any SPAC Benefit Plan, or enter into any employment contract or Labor Agreement or (B) hire any employee or any other individual to provide services to SPAC or its Subsidiaries following Closing; and
(ix) enter into any agreement to do any action prohibited under this Section 9.3(a)8.3.
(b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger or acquire any assets prior to the Domestication Merger;
(ii) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(v) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock or other securities of Merger Sub 1 or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1;
(vi) liquidate, dissolve, reorganize or otherwise wind up the business and operations of Merger Sub 1;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ix) enter into any agreement or otherwise make a binding commitment to do any of the actions prohibited by this Section 9.3(b).
(c) During the Interim Period, each of SPAC and Merger Sub 1 shall comply with, and continue performing under, as applicable, their respective Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or Contracts to which SPAC or Merger Sub 1 may be a party.
Appears in 1 contract
Samples: Business Combination Agreement (Everest Consolidator Acquisition Corp)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except (i) as otherwise explicitly contemplated by this Agreement or the other Transaction Documents, (including ii) as contemplated required by the Domestication Merger)Law, or (iii) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate (A) conduct its business in the ordinary course and consistent with past practicepractice and (B) comply in all material respects with its Governing Documents. Without limiting the generality By way of the foregoingamplification and not limitation, except as consented to (x) expressly contemplated or permitted by any other provision of this Agreement or any Transaction Document, or (y) as required by applicable Law, SPAC shall not, during the Interim Period, directly or indirectly, do any of the following without the prior written consent of the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law:):
(i) seek any approval from the SPAC Shareholders, to change, modify or amend the Trust Agreement, the Warrant Agreement or the Governing Documents of SPAC, or seek any approval from SPAC Shareholders with respect to any such change, modification or amendment, in each case except as contemplated by the Transaction Proposals;
(ii) merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(iii) (x) make or declare any dividend or distribution to SPAC Shareholders its shareholders or make any other distributions in respect of any of SPAC Ordinary Shares or other share capital or equity interests of SPACits Equity Securities, (y) splitsubdivided, combineconsolidate, reclassify or otherwise amend any terms of any SPAC Ordinary Shares or other share capital or equity interests in SPACits Equity Securities, or (z) purchase, repurchase, redeem or otherwise acquire any of its issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACEquity Securities, other than a redemption redemptions of SPAC Class A Ordinary Shares made as part of the SPAC Share Redemptions or in connection with the Domestication Merger;
(iii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax TreatmentRedemptions;
(iv) (A) make or change any material election in respect of Taxes, (AB) amend, modify or otherwise change any filed material Tax Return in a material respectReturn, (BC) adopt or request permission of any Tax authority to change any material accounting method in respect of material Taxes, (CD) enter into any material closing agreement within the meaning or other binding written agreement in respect of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) material Taxes or enter into any material Tax Sharing Agreementsharing or similar agreement, (DE) settle or consent to any material claim or assessment in respect of material Taxes, (EF) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course that would give rise to any claim or assessment of not more than seven (7) months)Taxes;
(v) enter intoexcept as contemplated by this Agreement, renew the other Transaction Documents, or amend in the Transactions, take any material respect action, or knowingly fail to take any transaction action, where such action or Contract with any SPAC Related Party (other than any Working Capital Loans incurred in failure to act would reasonably be expected to prevent, impair or impede the ordinary course of business not to exceed $1,000,000 in the aggregate)Intended Tax Treatment;
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate);
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based awards with respect to SPAC Securities or other equity interests in SPAC, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viii) enter into any agreement to do any action prohibited under this Section 9.3(a).
(b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger or acquire any assets prior to the Domestication Merger;
(ii) amend or otherwise change or replace or waive in any manner whatsoever any lock-up or transfer restriction provided for by the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase SPAC Material Contracts or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required related to implement the Transactions;
(v) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock or other securities of Merger Sub 1 SPAC or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), Equity Securities of Merger Sub 1SPAC;
(vivii) incur, guarantee or otherwise become liable for any Indebtedness, other than (i) liabilities incurred in the ordinary course of business and in an amount, individually or in the aggregate, not to exceed $100,000, (ii) any SPAC Transaction Expenses and (iii) Indebtedness incurred under the Working Capital Promissory Note;
(viii) (A) issue any Equity Securities or securities exercisable for or convertible into Equity Securities (other than issuances of SPAC Ordinary Shares issuable upon, or subject to, the exercise or settlement of the SPAC Warrants or in connection with the PIPE Investment), (B) grant any options, warrants or other equity-based awards with respect to any Equity Securities not outstanding on the date hereof, or (C) other than pursuant to or as contemplated by the Transaction Documents, amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the SPAC Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;
(ix) make any change in its accounting principles or methods unless required by GAAP or applicable Law;
(x) form any Subsidiary;
(xi) liquidate, dissolve, reorganize or otherwise wind wind-up the its business and operations of Merger Sub 1SPAC;
(viixii) acquire or hold conduct any equity securities or rights thereto in any other Person, business activities other than SPAC in accordance with activities directed toward the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede consummation of the Intended Tax TreatmentTransactions; or
(ixxiii) enter into any agreement or otherwise make a binding commitment to do any of the actions action prohibited by under this Section 9.3(b9.3(a).
(cb) During the Interim Period, each SPAC shall use reasonable best efforts to maintain the EarlyBird Engagement Letter in full force and effect (and SPAC shall not take any action to cause the EarlyBird Engagement Letter not to be in full force and effect and shall not refrain from taking any commercially reasonable action to maintain the EarlyBird Engagement Letter in full force and effect) and SPAC shall not amend or otherwise change the EarlyBird Engagement Letter without the prior written consent of the Company and any such amendment or change shall be in a form that is mutually agreeable to SPAC and Merger Sub 1 the Company. SPAC shall comply with, and continue performing under, with all requirements of the EarlyBird Engagement Letter in connection with the payment of a portion of the Transaction Fee (as applicable, their respective Governing Documents, defined in the Trust Agreement, the Warrant Agreement and all other agreements or Contracts to which SPAC or Merger Sub 1 may be a partyEarlyBird Engagement Letter) in Company Shares.
Appears in 1 contract
Samples: Business Combination Agreement (APx Acquisition Corp. I)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except Except as otherwise explicitly contemplated expressly permitted by this Agreement (including or the Ancillary Agreements; as contemplated required by applicable Law, any Governmental Authority or any Contract to which SPAC is a party; as required by Permitted COVID-19 Measures; as set forth on Section7.3(a) of the Domestication Merger), SPAC Disclosure Letter; for the incurrence of SPAC Transaction Expenses; or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, conditioned or delayed or deniedand shall be deemed given if the Company has not affirmatively denied consent in writing within five (5) Business Days of receipt of SPAC’s written request for consent), during the Interim Period, SPAC shall operate its business in the ordinary course Ordinary Course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law:
(i) changeChange, modify or amend the Trust Agreement, the Warrant Agreement or the SPAC Governing Documents of SPACDocuments, or seek any approval from the SPAC Shareholders with respect to take any such changeaction, modification or amendment, in each case except as contemplated by the Transaction Proposals;
(ii) Change, modify or amend the SPAC Warrant Agreement, other than change, modify or amend the SPAC Warrant Agreement in connection with entry into the Assignment and Assumption Agreement;
(xiii) (A) make or declare any dividend or distribution to the SPAC Shareholders or make any other distributions in respect of any of SPAC Ordinary Shares or other its share capital or equity interests of SPAC, interests; (yB) split, combine, reclassify reclassify, recapitalize or otherwise amend any terms of any SPAC Ordinary Shares shares or other share series of its capital stock or equity interests in SPAC, interests; or (zC) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACinterests, other than a redemption of SPAC Class A Ordinary Shares (prior to the SPAC Merger Effective Time) made as part of the SPAC Share Redemptions or in connection with the Domestication MergerRedemptions;
(iiiiv) Merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or business, or be acquired by any other Person;
(v) Make, change or revoke any material election in respect of Taxes, except to comply with GAAP or applicable Law, or incur, settle or compromise any material U.S. federal, state, local or non-U.S. Tax liability, except in the Ordinary Course; or change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any Tax Returns or file claims for Tax refunds, enter into any closing agreement, waive or extend any statute of limitations period in respect of an amount of Taxes, settle any Tax claim, audit or assessment, or surrender any right to claim a Tax refund, offset or other reduction in Tax liability;
(vi) Take, agree to take, or fail to take, any action if such action, or failure to take such action, would that could reasonably be expected to prevent, impair or impede the Transactions from qualifying for the Intended Tax Treatment;
(ivvii) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months);
(v) enter Enter into, renew or amend in any material respect respect, any transaction or Contract (A) with any SPAC Related Party (an Affiliate of SPAC, other than any Working Capital Loans incurred transaction or Contract pursuant to which Sponsor or any of its Affiliates provides debt financing to SPAC in the ordinary course of business an amount not to exceed Three Hundred Thousand Dollars ($1,000,000 in 300,000) as identified on the aggregate);
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate);
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities)Financing Certificate, (B) grant with any options, warrants SPAC Shareholder except as permitted or other equity‑based awards with respect to SPAC Securities or other equity interests in SPAC, contemplated by this Agreement including any PIPE Subscription Agreement or (C) amendwith any Person in which any Sponsor has a direct or indirect legal, modify contractual or waive any beneficial ownership interest of the material terms 5% or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; orgreater;
(viii) enter into Incur or assume any agreement Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities or warrants or other rights to do acquire any action prohibited under this Section 9.3(a).
(b) During the Interim Perioddebt securities or guaranty any debt securities of another Person, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter other than any Indebtedness for borrowed money or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise guarantee expressly contemplated by this Agreement or debt financing provided by Sponsor or any of its Affiliates to SPAC in an amount not to exceed Three Hundred Thousand Dollars ($300,000) as identified on the Ancillary Agreements SPAC Financing Certificate;
(ix) Make any material change in its accounting principles, policies, procedures or as explicitly contemplated in connection with the Transactions or methods unless required by Law an amendment in GAAP made subsequent to the date hereof, as agreed to by its independent accountants; or in connection with any Permitted Action:
(i) engage in any conduct in a new line of business or activity of engage in any sort whatsoever material commercial activities (other than in connection with to consummate the Domestication Merger or acquire any assets prior to the Domestication MergerTransactions contemplated by this Agreement);
(iix) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(v) issueIssue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock SPAC Ordinary Shares or rights or other securities of Merger Sub 1 exercisable for or convertible into SPAC Ordinary Shares; or grant any options, warrants, convertible securities warrants or other rights equity-based awards with respect to SPAC Ordinary Shares not outstanding on the date of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1this Agreement;
(vixi) liquidateWaive, release, compromise, settle or agree to waive, release, compromise, or settle any Action, except where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate;
(xii) Hire, or otherwise enter into any employment, collective bargaining, consulting or similar agreement with, any person; grant any increase in the compensation of any current or former officer or director; adopt any benefit plan for the benefit of any current or former officer or director; or materially amend any existing agreement with any current or former officer or director;
(xiii) Make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants, other than business expenses advanced to officers or directors in the Ordinary Course), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any Person;
(xiv) Liquidate, dissolve, reorganize or otherwise wind wind-up the its business and operations of Merger Sub 1operations;
(viixv) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ix) enter Enter into any formal or informal agreement or otherwise make a binding commitment to do any action prohibited under this Section7.3;
(xvi) Split, combine, reclassify, recapitalize or otherwise amend any terms of any shares or series of SPAC’s share capital or equity interests; or
(xvii) Purchase, repurchase, redeem (except for the exercise of the actions prohibited by this Section 9.3(b)SPAC Share Redemption) or otherwise acquire any issued and outstanding share capital, membership interests or other equity interests of SPAC.
(cb) During the Interim Period, each of SPAC and Merger Sub 1 shall comply in all material respects with, and continue performing under, as applicable, their respective its Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or material Contracts to which SPAC or Merger Sub 1 may be it is a party.
Appears in 1 contract
Samples: Business Combination Agreement (Healthcare AI Acquisition Corp.)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except Except (i) as otherwise explicitly contemplated expressly permitted by this Agreement or the Ancillary Agreements, (including ii) as contemplated required by the Domestication Merger)applicable Law, Governmental Authority, or any Contract to which SPAC is a party, (iii) as required by Permitted COVID-19 Measures, (iv) as set forth on Section 7.3(a) of the SPAC Disclosure Letter, (v) for the incurrence of SPAC Transaction Expenses or (vi) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed, and in any event, such consent shall be deemed given if the Company has not affirmatively denied consent in writing within five (5) Business Days of receipt of SPAC’s written request for consent), during the Interim Period, SPAC shall operate its business in the ordinary course Ordinary Course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law:
(i) (A) change, modify or amend the Trust Agreement, the Warrant Agreement or the SPAC Governing Documents of SPACDocuments, or seek any approval from the SPAC Shareholders with respect Stockholders to do take any such changeaction, modification or amendment, in each case except as contemplated by the Transaction ProposalsProposals or (B) change, modify or amend its Governing Documents;
(ii) change, modify or amend the SPAC Rights Agreement (as defined in the SPAC Rights Agreement);
(iii) (x) make or declare any dividend or distribution to the SPAC Shareholders Stockholders or make any other distributions in respect of any of SPAC Ordinary Shares or other its capital stock, share capital or equity interests of SPACinterests, (y) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares shares or other share series of its capital stock or equity interests in SPAC, or (z) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACinterests, other than a redemption of SPAC Class A Ordinary Shares Common Stock (prior to the SPAC Merger Effective Time) made as part of the SPAC Share Redemptions or in connection with the Domestication MergerRedemptions;
(iiiiv) merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or business, or be acquired by any other Person;
(v) (A) make, change or revoke any material election in respect of Taxes, except to comply with GAAP or applicable Law, or settle or compromise any material United States federal, state, local or non-United States Tax liability, except in the Ordinary Course, or (B) change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any Tax Returns or file claims for Tax refunds, enter into any closing agreement, waive or extend any statute of limitations period in respect of an amount of Taxes, settle any Tax claim, audit or assessment, or surrender any right to claim a Tax refund, offset or other reduction in Tax liability;
(vi) take, agree to take, or fail to take, any action if such action, or failure to take such action, would that could reasonably be expected to prevent, impair or impede prevent the Transactions from qualifying for the Intended Tax Treatment;Treatment;
(iv) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months);
(vvii) enter into, renew or amend in any material respect respect, any transaction or Contract (A) with any SPAC Related Party (an Affiliate of SPAC, other than any Working Capital Loans incurred in the ordinary course transaction or Contract pursuant to which Sponsor or any of business not to exceed $1,000,000 in the aggregate);
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate);
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based awards with respect its Affiliates provides debt financing to SPAC Securities or other equity interests in SPAC, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viii) enter into any agreement to do any action prohibited under this Section 9.3(a).
(b) During the Interim Period, except as set forth identified on Section 9.3(b) of the SPAC Disclosure Letter Financing Certificate or as consented to by with the Company in writing (Company’s prior consent, which consent shall not be unreasonably conditioned, withheld, delayed or denied(B) Merger Sub 1 shall not, with any SPAC Stockholder except as otherwise permitted or contemplated by this Agreement including any PIPE Subscription Agreement, or (C) with any Person in which any Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater;
(viii) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities or warrants or other rights to acquire any debt securities or guaranty any debt securities of another Person, other than any (a) Indebtedness for borrowed money or guarantee expressly contemplated by this Agreement or (b) debt financing provided by Sponsor or any of its Affiliates to SPAC as identified on the Ancillary Agreements SPAC Financing Certificate;
(ix) (A) make any material change in its accounting principles, policies, procedures or as explicitly contemplated in connection with the Transactions or methods unless required by Law an amendment in GAAP made subsequent to the date hereof, as agreed to by its independent accountants, or in connection with any Permitted Action:
(iB) engage in any conduct in a new line of business or activity of engage in any sort whatsoever material commercial activities (other than in connection with to consummate the Domestication Merger or acquire any assets prior to the Domestication MergerTransactions contemplated by this Agreement);
(iix) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(vA) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock SPAC Common Stock securities or other securities of Merger Sub 1 rights exercisable for or convertible into SPAC Common Stock, or (B) grant any options, warrants, convertible securities warrants or other rights equity-based awards with respect to SPAC Common Stock not outstanding on the date of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1this Agreement and disclosed in documents filed publicly with the SEC;
(vixi) waive, release, compromise, settle or agree to waive, release, compromise, or settle any Action except where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;
(A) hire, or otherwise enter into any employment, collective bargaining, consulting or similar agreement with, any person, (B) grant any increase in the compensation of any current or former officer or director, (C) adopt any benefit plan for the benefit of any current or former officer or director, or (D) materially amend any existing agreement with any current or former officer or director;
(xiii) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants, other than business expenses advanced to officers or directors in the Ordinary Course), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any Person;
(xiv) liquidate, dissolve, reorganize or otherwise wind wind-up the its business and operations of Merger Sub 1operations;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ixxv) enter into any formal or informal agreement or otherwise make a binding commitment to do any action prohibited under this Section 7.3;
(xvi) split, combine, reclassify, recapitalize or otherwise amend any terms of any shares or series of SPAC’s capital stock or equity interests; or
(xvii) purchase, repurchase, redeem (except for the exercise of the actions prohibited by this Section 9.3(b)SPAC Share Redemption) or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, membership interests or other equity interests of SPAC.
(cb) During the Interim Period, each of SPAC and Merger Sub 1 shall comply in all material respects with, and continue performing under, as applicable, their respective its Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or material Contracts to which SPAC or Merger Sub 1 it may be a party.
Appears in 1 contract
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except Except (i) as otherwise explicitly contemplated expressly permitted by this Agreement or the Ancillary Agreements, (including ii) as contemplated required by the Domestication Merger)applicable Law, Governmental Authority, or any Contract to which SPAC is a party, (iii) as required by Permitted COVID-19 Measures, (iv) as set forth in Section 7.3(a) of the SPAC Disclosure Letter, (v) for the incurrence of SPAC Transaction Expenses or (vi) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), during the Interim Period, SPAC shall operate its business in the ordinary course Ordinary Course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law:
(i) (A) change, modify or amend the Trust Agreement, the Warrant Agreement or the SPAC Governing Documents of SPACDocuments, or seek any approval from the SPAC Shareholders with respect Stockholders to do take any such changeaction, modification or amendment, in each case except as contemplated by the Transaction ProposalsProposals or (B) change, modify or amend its Governing Documents;
(ii) change, modify or amend the SPAC Rights Agreement (as defined in the SPAC Rights Agreement);
(iii) (x) make or declare any dividend or distribution to the SPAC Shareholders Stockholders or make any other distributions in respect of any of SPAC Ordinary Shares or other its capital stock, share capital or equity interests of SPACinterests, (y) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares shares or other share series of its capital stock or equity interests in SPAC, or (z) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACinterests, other than a redemption of SPAC Class A Ordinary Shares Common Stock (prior to the SPAC Merger Effective Time) made as part of the SPAC Share Redemptions or in connection with the Domestication MergerRedemptions;
(iiiiv) merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or business, or be acquired by any other Person;
(v) (A) make, change or revoke any material election in respect of Taxes, except to comply with GAAP or applicable Law, or settle or compromise any material U.S. federal, state, local or non-U.S. Tax liability, except in the Ordinary Course, or (B) change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any Tax Returns or file claims for Tax refunds, enter into any closing agreement, waive or extend any statute of limitations period in respect of an amount of Taxes, settle any Tax claim, audit or assessment, or surrender any right to claim a Tax refund, offset or other reduction in Tax liability;
(vi) take, agree to take, or fail to take, any action if such action, or failure to take such action, would that could reasonably be expected to prevent, impair or impede prevent the Transactions from qualifying for the Intended Tax Treatment;Treatment;
(iv) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months);
(vvii) enter into, renew or amend in any material respect respect, any transaction or Contract (A) with any SPAC Related Party (an Affiliate of SPAC, other than any Working Capital Loans incurred in the ordinary course transaction or Contract pursuant to which Sponsor or any of business not to exceed $1,000,000 in the aggregate);
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate);
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based awards with respect its Affiliates provides debt financing to SPAC Securities or other equity interests in SPAC, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viii) enter into any agreement to do any action prohibited under this Section 9.3(a).
(b) During the Interim Period, except as set forth identified on Section 9.3(b) of the SPAC Disclosure Letter Financing Certificate or as consented to by with the Company in writing (Company’s prior consent, which consent shall not be unreasonably conditioned, withheld, delayed or denied(B) Merger Sub 1 shall not, with any SPAC Stockholder except as otherwise permitted or contemplated by this Agreement, or (C) with any Person in which any Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater;
(viii) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities or warrants or other rights to acquire any debt securities or guaranty any debt securities of another Person, other than any (a) Indebtedness for borrowed money or guarantee expressly contemplated by this Agreement or (b) debt financing provided by Sponsor or any of its Affiliates to SPAC as identified on the Ancillary Agreements SPAC Financing Certificate;
(A) make any material change in its accounting principles, policies, procedures or as explicitly contemplated in connection with the Transactions or methods unless required by Law an amendment in GAAP made subsequent to the date hereof, as agreed to by its independent accountants, or in connection with any Permitted Action:
(iB) engage in any conduct in a new line of business or activity of engage in any sort whatsoever material commercial activities (other than in connection with to consummate the Domestication Merger or acquire any assets prior to the Domestication MergerTransactions contemplated by this Agreement);
(iix) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(vA) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock SPAC Common Stock securities or other securities of Merger Sub 1 rights exercisable for or convertible into SPAC Common Stock, or (B) grant any options, warrants, convertible securities warrants or other rights equity-based awards with respect to SPAC Common Stock not outstanding on the date of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1this Agreement and disclosed in documents filed publicly with the SEC;
(vixi) waive, release, compromise, settle or agree to waive, release, compromise, or settle any Action except where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;
(A) hire, or otherwise enter into any employment, collective bargaining, consulting or similar agreement with, any person, (B) grant any increase in the compensation of any current or former officer or director, (C) adopt any benefit plan for the benefit of any current or former officer or director, or (D) materially amend any existing agreement with any current or former officer or director;
(xiii) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants, other than business expenses advanced to officers or directors in the Ordinary Course), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any Person;
(xiv) liquidate, dissolve, reorganize or otherwise wind wind-up the its business and operations of Merger Sub 1operations;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ixxv) enter into any formal or informal agreement or otherwise make a binding commitment to do any action prohibited under this Section 7.3;
(xvi) split, combine, reclassify, recapitalize or otherwise amend any terms of any shares or series of SPAC’s capital stock or equity interests; or
(xvii) purchase, repurchase, redeem (except for the exercise of the actions prohibited by this Section 9.3(b)SPAC Share Redemption) or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, membership interests or other equity interests of SPAC.
(cb) During the Interim Period, each of SPAC and Merger Sub 1 shall comply (1) in all material respects with, and continue performing under, as applicable, their respective its Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or material Contracts to which SPAC or Merger Sub 1 it may be a partyparty and (2) with all applicable Sanctions and Export Law. If, during the Interim Period, the SPAC (A) receives written notice of, any actual, alleged or potential violation of any Sanctions or Export Law, (B) becomes a party to or the subject of any pending (or to the Knowledge of SPAC, threatened) Action by or before any Governmental Authority (including receipt of any subpoena) related to any actual, alleged or potential violation of any Sanctions or Export Law, or (C) to the Knowledge of SPAC, otherwise becomes aware of any actual, alleged, or potential violation of any Sanctions or Export Law, it shall provide written notice to the Company within three (3) Business Day of the discovery of the actual, alleged, or potential violation.
Appears in 1 contract
Samples: Business Combination Agreement (Mountain Crest Acquisition Corp. V)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except as otherwise explicitly contemplated by this Agreement (or the Ancillary Agreements, including in connection with the SPAC Domestication, as contemplated required by the Domestication Merger), Law or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall, and shall cause Merger Sub to, use reasonable efforts to operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except foregoing or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, and SPAC shall cause Merger Sub not to, except as otherwise contemplated by this Agreement or the Ancillary Agreements Agreements, including in connection with the Company Domestication, or as required by Law:
(ia) seek any approval from the SPAC Shareholders, to change, modify or amend the Trust Agreement, the Warrant Agreement or the Governing Documents of SPACSPAC or Merger Sub, or seek any approval from SPAC Shareholders with respect to any such change, modification or amendment, in each case except as contemplated by the SPAC Transaction Proposals;
(iib) except as contemplated by the SPAC Transaction Proposals, (xi) make make, declare, set a record date for or declare pay any dividend or distribution to the SPAC Shareholders or make make, declare, set a record date for or declare any other distributions in respect of any of SPAC Ordinary Shares SPAC’s or other Merger Sub’s capital share, share capital or equity interests of SPACinterests, (yii) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares shares or other series of SPAC’s or Merger Sub’s capital share capital or equity interests in SPACinterests, or (ziii) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stockshare, share capital or membership interests, warrants or other equity interests of SPACSPAC or Merger Sub, other than a redemption of SPAC Class A Ordinary Shares made as part of the SPAC Share Redemptions or in connection with the Domestication MergerShareholder Redemptions;
(iiic) take, or fail to take, take any action if such action, or knowingly fail to take any action, where such action or failure to take such action, would act could reasonably be expected to prevent, impair prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations or impede to prevent the Transactions from qualifying for the Intended Tax Treatment;
(iv) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months);
(vd) enter into, renew or amend in any material respect respect, any transaction or Contract with an Affiliate of SPAC or Merger Sub (including, for the avoidance of doubt, (i) the Sponsor and (ii) any SPAC Related Party Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(e) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any Working Capital Loans indebtedness for borrowed money or guarantee (i) incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $1,000,000 US$100,000, (ii) in the aggregate)respect of any Working Capital Loan, (iii) in connection with Extension Proposals, (iv) in respect of any SPAC Transaction Expense, or (v) incurred between SPAC and Merger Sub;
(vif) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of SPAC (which the Parties parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred and in the ordinary course of business, not to exceed $1,000,000 in the aggregateconnection with Extension Proposals);
(viig) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based equity-based awards with respect to SPAC Securities or other equity interests in SPACnot outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viiih) enter into any agreement to do any action prohibited under this Section 9.3(a)6.2.
(b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger or acquire any assets prior to the Domestication Merger;
(ii) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(v) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock or other securities of Merger Sub 1 or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1;
(vi) liquidate, dissolve, reorganize or otherwise wind up the business and operations of Merger Sub 1;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ix) enter into any agreement or otherwise make a binding commitment to do any of the actions prohibited by this Section 9.3(b).
(c) During the Interim Period, each of SPAC and Merger Sub 1 shall comply with, and continue performing under, as applicable, their respective Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or Contracts to which SPAC or Merger Sub 1 may be a party.
Appears in 1 contract
Samples: Business Combination Agreement (HH&L Acquisition Co.)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except Except (i) as otherwise explicitly contemplated expressly permitted by this Agreement or the Ancillary Agreements, (including ii) as contemplated required by the Domestication Merger)applicable Law, Governmental Authority, or any Contract to which SPAC is a party, (iii) as required by Permitted COVID-19 Measures, (iv) as set forth on Section 7.3(a) of the SPAC Disclosure Letter, (v) for the incurrence of SPAC Transaction Expenses or (vi) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed, and in any event, such consent shall be deemed given if the Company has not affirmatively denied consent in writing within five (5) Business Days of receipt of SPAC’s written request for consent), during the Interim Period, SPAC shall operate its business in the ordinary course Ordinary Course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law:
(i) (A) change, modify or amend the Trust Agreement, the Warrant Agreement or the SPAC Governing Documents of SPACDocuments, or seek any approval from the SPAC Shareholders with respect Stockholders to do take any such changeaction, modification or amendment, in each case except as contemplated by the Transaction ProposalsProposals or (B) change, modify or amend its Governing Documents;
(ii) change, modify or amend the SPAC Rights Agreement (as defined in the SPAC Rights Agreement);
(iii) (x) make or declare any dividend or distribution to the SPAC Shareholders Stockholders or make any other distributions in respect of any of SPAC Ordinary Shares or other its capital stock, share capital or equity interests of SPACinterests, (y) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares shares or other share series of its capital stock or equity interests in SPAC, or (z) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACinterests, other than a redemption of SPAC Class A Ordinary Shares Common Stock (prior to the SPAC Merger Effective Time) made as part of the SPAC Share Redemptions or in connection with the Domestication MergerRedemptions;
(iiiiv) merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or business, or be acquired by any other Person;
(v) (A) make, change or revoke any material election in respect of Taxes, except to comply with GAAP or applicable Law, or settle or compromise any material United States federal, state, local or non-United States Tax liability, except in the Ordinary Course, or (B) change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any Tax Returns or file claims for Tax refunds, enter into any closing agreement, waive or extend any statute of limitations period in respect of an amount of Taxes, settle any Tax claim, audit or assessment, or surrender any right to claim a Tax refund, offset or other reduction in Tax liability;
(vi) take, agree to take, or fail to take, any action if such action, or failure to take such action, would that could reasonably be expected to prevent, impair or impede prevent the Transactions from qualifying for the Intended Tax Treatment;Treatment;
(iv) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months);
(vvii) enter into, renew or amend in any material respect respect, any transaction or Contract (A) with any SPAC Related Party (an Affiliate of SPAC, other than any Working Capital Loans incurred in the ordinary course transaction or Contract pursuant to which Sponsor or any of business not to exceed $1,000,000 in the aggregate);
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate);
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based awards with respect its Affiliates provides debt financing to SPAC Securities or other equity interests in SPAC, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viii) enter into any agreement to do any action prohibited under this Section 9.3(a).
(b) During the Interim Period, except as set forth identified on Section 9.3(b) of the SPAC Disclosure Letter Financing Certificate or as consented to by with the Company in writing (Company’s prior consent, which consent shall not be unreasonably conditioned, withheld, delayed or denied(B) Merger Sub 1 shall not, with any SPAC Stockholder except as otherwise permitted or contemplated by this Agreement, or (C) with any Person in which any Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater;
(viii) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities or warrants or other rights to acquire any debt securities or guaranty any debt securities of another Person, other than any (a) Indebtedness for borrowed money or guarantee expressly contemplated by this Agreement or (b) debt financing provided by Sponsor or any of its Affiliates to SPAC as identified on the Ancillary Agreements SPAC Financing Certificate;
(ix) (A) make any material change in its accounting principles, policies, procedures or as explicitly contemplated in connection with the Transactions or methods unless required by Law an amendment in GAAP made subsequent to the date hereof, as agreed to by its independent accountants, or in connection with any Permitted Action:
(iB) engage in any conduct in a new line of business or activity of engage in any sort whatsoever material commercial activities (other than in connection with to consummate the Domestication Merger or acquire any assets prior to the Domestication MergerTransactions contemplated by this Agreement);
(iix) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(vA) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock SPAC Common Stock securities or other securities of Merger Sub 1 rights exercisable for or convertible into SPAC Common Stock, or (B) grant any options, warrants, convertible securities warrants or other rights equity-based awards with respect to SPAC Common Stock not outstanding on the date of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1this Agreement and disclosed in documents filed publicly with the SEC;
(vixi) waive, release, compromise, settle or agree to waive, release, compromise, or settle any Action except where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;
(A) hire, or otherwise enter into any employment, collective bargaining, consulting or similar agreement with, any person, (B) grant any increase in the compensation of any current or former officer or director, (C) adopt any benefit plan for the benefit of any current or former officer or director, or (D) materially amend any existing agreement with any current or former officer or director;
(xiii) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants, other than business expenses advanced to officers or directors in the Ordinary Course), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any Person;
(xiv) liquidate, dissolve, reorganize or otherwise wind wind-up the its business and operations of Merger Sub 1operations;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ixxv) enter into any formal or informal agreement or otherwise make a binding commitment to do any action prohibited under this Section 7.3;
(xvi) split, combine, reclassify, recapitalize or otherwise amend any terms of any shares or series of SPAC’s capital stock or equity interests; or
(xvii) purchase, repurchase, redeem (except for the exercise of the actions prohibited by this Section 9.3(b)SPAC Share Redemption) or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, membership interests or other equity interests of SPAC.
(cb) During the Interim Period, each of SPAC and Merger Sub 1 shall comply in all material respects with, and continue performing under, as applicable, their respective its Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or material Contracts to which SPAC or Merger Sub 1 it may be a party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pacifico Acquisition Corp.)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except Except (i) as otherwise explicitly contemplated expressly permitted by this Agreement or the Ancillary Agreements, (including ii) as contemplated required by the Domestication Merger)applicable Law, Governmental Authority, or any Contract to which SPAC is a party, (iii) as set forth on Section 10.3(a) of the SPAC Disclosure Schedules, (iv) for the incurrence of SPAC Transaction Expenses or (v) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), during the Interim Period, SPAC shall use its commercially reasonable efforts to, and shall cause each of its Subsidiaries to use their commercially reasonable efforts to, operate its business in the ordinary course Ordinary Course and consistent in compliance with past practice. Without limiting the generality of the foregoingapplicable Laws in all material respects, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC and shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Lawand shall cause each of its Subsidiaries not to:
(i) change, modify or amend the Trust Agreement, the Warrant Agreement or the SPAC’s Governing Documents of SPACDocuments, or seek any approval from the SPAC Shareholders with respect Stockholders to take any such changeaction, modification or amendment, in each case except as contemplated by the Transaction Proposals;
(ii) change, modify or amend the SPAC Warrant Agreement, including by reducing the Warrant Price (xas defined in the SPAC Warrant Agreement);
(iii) (A) make or declare any dividend or distribution to the SPAC Shareholders Stockholders or make any other distributions in respect of any of SPAC Ordinary Shares or other its capital stock, share capital or equity interests of SPACinterests, (yB) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares shares or other share series of its capital stock or equity interests in SPAC, or (zC) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACinterests, other than a redemption of SPAC Class A Ordinary Shares Common Stock (prior to the Closing Date) made as part of the SPAC Share Redemptions or in connection with the Domestication Merger;
(iii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax TreatmentRedemptions;
(iv) make merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(v) except as required by this Agreement, (i) make, change, or revoke an entity classification election or other material election for U.S. federal income Tax purposes for SPAC, (ii) settle or compromise any material U.S. federal, state, local, or non-U.S. Tax liability, (iii) change any material election in respect annual Tax accounting period, or adopt, change or revoke any method of TaxesTax accounting, (Aiv) amend, modify amend any Tax Returns or otherwise change any filed material file claims for Tax Return in a material respectrefunds, (B) adopt or change any material accounting method in respect of Taxes, (Cv) enter into any material closing agreement within the meaning agreement, waive or extend any statute of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment limitations period in respect of an amount of Taxes, settle any Tax claim, audit or assessment, (Evi) change its jurisdiction of tax residency, (vii) surrender or voluntarily allow to expire any right to claim a refund of material TaxesTax refund, offset or other reduction in Tax liability, (Fviii) file enter into any Tax Return in a manner that is inconsistent with the past practices of SPAC sharing or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute indemnification agreement (other than an extension (A) one that is included in a Contract entered into in the ordinary course Ordinary Course that is not primarily related to Taxes, or (B) with any other Group Company or any of not more than seven its current Affiliates), or (7ix) months)fail to pay any material Taxes when due; in each case, that could reasonably be expected to have an adverse and material impact on SPAC;
(vvi) enter into, renew or amend in any material respect respect, any transaction or Contract (A) with an Affiliate of SPAC (including, for the avoidance of doubt, (x) Sponsor and (y) any Person in which Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of five percent (5%) or more), (B) with any SPAC Related Party Stockholder except as permitted or contemplated by this Agreement or (other than C) between SPAC and any Working Capital Loans incurred in the ordinary course of business not broker, finder, investment banker or financial advisor with respect to exceed $1,000,000 in the aggregate);
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate)Transactions;
(vii) (A) issue except in connection with any SPAC Securities Extension Expenses, incur or other equity interests in SPAC (including assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based awards with respect rights to SPAC Securities acquire any debt securities or other equity interests in SPAC, or (C) amend, modify or waive guaranty any debt securities of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; oranother Person;
(viii) enter into (A) make any agreement material change in its accounting principles, policies, procedures or methods unless required by an amendment in GAAP made subsequent to do any action prohibited under the date of this Section 9.3(a).
(b) During the Interim PeriodAgreement, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented agreed to by the Company in writing its independent accountants, or (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(iB) engage in any conduct in a new line of business or activity of engage in any sort whatsoever material commercial activities (other than in connection with to consummate the Domestication Merger or acquire any assets prior to the Domestication MergerTransactions);
(iiix) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(vA) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock SPAC Capital Stock or other securities of Merger Sub 1 exercisable for or convertible into SPAC Capital Stock or (B) grant any options, warrants, convertible securities warrants or other equity-based awards with respect to SPAC Capital Stock not outstanding on the date of this Agreement and disclosed in documents filed publicly with the SEC or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the SPAC Warrant Agreement, including any amendment, modification or reduction of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1the warrant price set forth therein;
(vix) waive, release, compromise, settle or agree to waive, release, compromise, or settle any Action;
(xi) except as set forth on Section 10.3(a)(xi) of the SPAC Disclosure Schedules, (A) hire, or otherwise enter into any employment, consulting or similar agreement with, any person, (B) grant any increase in the compensation of any current or former officer or director, (C) adopt any benefit plan for the benefit of any current or former officer or director, or (D) materially amend any existing agreement with any current or former officer or director;
(xii) except as set forth on Section 10.3(a)(xii) of the SPAC Disclosure Schedules, make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants, other than business expenses advanced to officers or directors in the Ordinary Course), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any Person;
(xiii) liquidate, dissolve, reorganize or otherwise wind wind-up the its business and operations of Merger Sub 1operations;
(viixiv) acquire split, combine, reclassify, recapitalize or hold otherwise amend any terms of any shares or series of SPAC Capital Stock or equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3interests;
(viiixv) takeexcept as set forth on Section 10.3(a)(xv) of the SPAC Disclosure Schedules, purchase, repurchase, redeem (except for the exercise of the SPAC Share Redemption) or fail to takeotherwise acquire any issued and outstanding share capital, any action if such actionoutstanding shares of capital stock, membership interests or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatmentother equity interests of SPAC; or
(ixxvi) enter into any formal or informal agreement or otherwise make a binding commitment to do any of the actions action prohibited by under this Section 9.3(b)10.3.
(cb) During the Interim Period, each of SPAC and Merger Sub 1 shall comply in all material respects with, and continue performing under, as applicable, their respective its Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or SPAC Material Contracts to which SPAC or Merger Sub 1 it may be a party.
Appears in 1 contract
Samples: Business Combination Agreement (Integral Acquisition Corp 1)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except as otherwise explicitly contemplated by this Agreement or the Ancillary Agreements (including as contemplated by the Domestication Merger)PIPE Investment) as required by Law, as set forth on Section 7.2 of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as set forth on Section 7.2 of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements Agreements, or as disclosed in the SPAC SEC Filings or as required by Law:
(ia) seek any approval from the SPAC Shareholders, to change, modify or amend the Trust Agreement, the Warrant Agreement or the Governing Documents of SPAC, or seek any approval from SPAC Shareholders with respect to any such change, modification or amendment, in each case except as contemplated by the SPAC Transaction Proposals;
(iib) except as contemplated by the SPAC Transaction Proposals, (xA) make make, declare, set a record date for or declare pay any dividend or distribution to the SPAC Shareholders or make make, declare, set a record date for or declare any other distributions in respect of any of SPAC Ordinary Shares or other SPAC’s share, share capital or equity interests of SPACinterests, (yB) splitsubdivide, combineconsolidate, reclassify or otherwise amend any terms of any SPAC Ordinary Shares or other of SPAC’s share capital or equity interests in SPACinterests, or (zC) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPAC, other than a redemption of SPAC Class A Ordinary Shares made as part of the SPAC Share Redemptions or in connection with the Domestication MergerShareholder Redemptions;
(iiic) take, or fail to take, take any action if such action, or knowingly fail to take any action, where such action or failure to take such action, would act could reasonably be expected to prevent, impair or impede the Intended Tax TreatmentTreatment of the Transactions or the Business Combination Transaction;
(iv) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months);
(vd) enter into, renew or amend in any material respect respect, any transaction or Contract with an Affiliate of SPAC (including, for the avoidance of doubt, (x) the Sponsor and (y) any SPAC Related Party Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(e) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or guaranty any debt securities of another Person, other than any Working Capital Loans indebtedness for borrowed money or guarantee (x) incurred in the ordinary course of business not to exceed $1,000,000 consistent with past practice, (y) in respect of any Working Capital Loan which individually or in the aggregate)aggregate exceed US$300,000, or (z) in respect of a SPAC Transaction Expense;
(vif) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred which individually or in the ordinary course of business, aggregate do not to exceed $1,000,000 in the aggregateUS$300,000);
(viig) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants warrants, units or other equity‑based equity-based awards with respect to SPAC Securities not outstanding on the date hereof pursuant to any share incentive plan or other equity interests in SPACotherwise, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viii) enter into any agreement to do any action prohibited under this Section 9.3(a).
(b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger or acquire any assets prior to the Domestication Merger;
(ii) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(v) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock or other securities of Merger Sub 1 or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1;
(vih) liquidate, dissolve, reorganize or otherwise wind up the business and operations of Merger Sub 1SPAC;
(viii) acquire amend or hold any equity securities modify the Trust Agreement or rights thereto in any other Person, other than SPAC in accordance with agreement related to the applicable provisions set forth in Article 2 and Article 3Trust Account;
(viiij) takemake any change in any method of financial accounting or financial accounting principles, policies, procedures or practices, except as required by a concurrent amendment in GAAP or applicable Law;
(A) amend any material Tax Return, (B) change any method of Tax accounting, (C) make, change or rescind any material election relating to Taxes, or fail (D) settle or compromise any material U.S. federal, state, local or non-U.S. Tax audit, Tax assessment, Tax claim or other controversy related to takeTaxes;
(l) (i) acquire (including by merger, any action if such actionconsolidation, or failure to take such actionacquisition of shares or assets or any other business combination) any corporation, would reasonably be expected to preventpartnership, impair other business organization or impede otherwise acquire any securities or material assets from any third party, (ii) enter into any strategic joint ventures, partnerships or alliances with any other person or (iii) make any loan or advance or investment in any third party or initiate the Intended Tax Treatmentstart-up of any new business, non-wholly owned Subsidiary or joint venture; or
(ixm) enter into any agreement or otherwise make a binding commitment to do any of the actions action prohibited by under this Section 9.3(b)7.2.
(c) During the Interim Period, each of SPAC and Merger Sub 1 shall comply with, and continue performing under, as applicable, their respective Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or Contracts to which SPAC or Merger Sub 1 may be a party.
Appears in 1 contract
Samples: Business Combination Agreement (Chenghe Acquisition II Co.)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except as otherwise explicitly contemplated by this Agreement or the Ancillary Agreements (including as contemplated by the Domestication Merger)PIPE Investment) as required by Law, as set forth on Section 7.2 of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall use reasonable efforts to operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as set forth on Section 7.2 of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements Agreements, or as disclosed in the SPAC SEC Filings or as required by Law:
(ia) seek any approval from the SPAC Shareholders, to change, modify or amend the Trust Agreement, the Warrant Agreement or the Governing Documents of SPAC, or seek any approval from SPAC Shareholders with respect to any such change, modification or amendment, in each case except as contemplated by the SPAC Transaction Proposals;
(iib) except as contemplated by the SPAC Transaction Proposals, (xA) make make, declare, set a record date for or declare pay any dividend or distribution to the SPAC Shareholders or make make, declare, set a record date for or declare any other distributions in respect of any of SPAC Ordinary Shares or other SPAC’s share, share capital or equity interests of SPACinterests, (yB) splitsubdivide, combineconsolidate, reclassify or otherwise amend any terms of any SPAC Ordinary Shares or other of SPAC’s share capital or equity interests in SPACinterests, or (zC) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPAC, other than a redemption of SPAC Class A Ordinary Shares made as part of the SPAC Share Redemptions or in connection with the Domestication MergerShareholder Redemptions;
(iiic) take, or fail to take, take any action if such action, or knowingly fail to take any action, where such action or failure to take such action, would act could reasonably be expected to prevent, impair or impede the Intended Tax TreatmentTreatment of the Transactions, the FST Restructuring or the Business Combination;
(iv) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months);
(vd) enter into, renew or amend in any material respect respect, any transaction or Contract with an Affiliate of SPAC (including, for the avoidance of doubt, (x) the Sponsor and (y) any SPAC Related Party Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(e) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or guaranty any debt securities of another Person, other than any Working Capital Loans indebtedness for borrowed money or guarantee (x) incurred in the ordinary course of business not to exceed $1,000,000 consistent with past practice, (y) in the aggregate)respect of any Working Capital Loan, or (z) in respect of a SPAC Transaction Expense;
(vif) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregateLoan);
(viig) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based equity-based awards with respect to SPAC Securities or other equity interests in SPACnot outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viiih) enter into any agreement to do any action prohibited under this Section 9.3(a)7.2.
(b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger or acquire any assets prior to the Domestication Merger;
(ii) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(v) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock or other securities of Merger Sub 1 or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1;
(vi) liquidate, dissolve, reorganize or otherwise wind up the business and operations of Merger Sub 1;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ix) enter into any agreement or otherwise make a binding commitment to do any of the actions prohibited by this Section 9.3(b).
(c) During the Interim Period, each of SPAC and Merger Sub 1 shall comply with, and continue performing under, as applicable, their respective Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or Contracts to which SPAC or Merger Sub 1 may be a party.
Appears in 1 contract
Samples: Business Combination Agreement (Chenghe Acquisition I Co.)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except Except (i) as otherwise explicitly contemplated expressly permitted by this Agreement or the Ancillary Agreements (including including, for the avoidance of doubt, as contemplated by pursuant to the Domestication MergerPIPE Subscription Agreements), (ii) as required by applicable Law, Governmental Authority, or any Contract to which SPAC is a party, (iii) as required by Permitted COVID-19 Measures, (iv) as set forth on Section 7.3(a) of the SPAC Disclosure Schedules, (v) for the incurrence of SPAC Transaction Expenses or (vi) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), during the Interim Period, SPAC shall use its reasonable best efforts to, and shall cause each of its Subsidiaries to use their reasonable best efforts to, operate its business in the ordinary course Ordinary Course and consistent in compliance with past practice. Without limiting the generality of the foregoingapplicable Laws in all material respects, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC and shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Lawand shall cause each of its Subsidiaries not to:
(i) change, modify or amend the Trust Agreement, the Warrant Agreement or the SPAC’s Governing Documents of SPACDocuments, or seek any approval from the SPAC Shareholders with respect Stockholders to take any such changeaction, modification or amendment, in each case except as contemplated by the Transaction Proposals;
(ii) change, modify or amend the SPAC Warrant Agreement, including by reducing the Warrant Price (xas defined in the SPAC Warrant Agreement);
(iii) (A) make or declare any dividend or distribution to the SPAC Shareholders Stockholders or make any other distributions in respect of any of SPAC Ordinary Shares or other its capital stock, share capital or equity interests of SPACinterests, (yB) split, combine, reclassify or otherwise amend any terms of any SPAC Ordinary Shares shares or other share series of its capital stock or equity interests in SPAC, or (zC) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACinterests, other than a redemption of SPAC Class A Ordinary Shares Common Stock (prior to the Closing Date) made as part of the SPAC Share Redemptions or in connection with the Domestication Merger;
(iii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax TreatmentRedemptions;
(iv) make merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or be acquired by any other Person;
(v) except as required by this Agreement, (i) make, change, or revoke an entity classification election or other material election for U.S. federal income Tax purposes for SPAC, (ii) settle or compromise any material U.S. federal, state, local, or non-U.S. Tax liability, (iii) change any material election in respect annual Tax accounting period, or adopt, change or revoke any method of TaxesTax accounting, (Aiv) amend, modify amend any Tax Returns or otherwise change any filed material file claims for Tax Return in a material respectrefunds, (B) adopt or change any material accounting method in respect of Taxes, (Cv) enter into any material closing agreement within the meaning agreement, waive or extend any statute of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment limitations period in respect of an amount of Taxes, settle any Tax claim, audit or assessment, (Evi) change its jurisdiction of tax residency, (vii) surrender or voluntarily allow to expire any right to claim a refund of material TaxesTax refund, offset or other reduction in Tax liability, (Fviii) file enter into any Tax Return in a manner that is inconsistent with the past practices of SPAC sharing or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute indemnification agreement (other than an extension (A) one that is included in a Contract entered into in the ordinary course Ordinary Course that is not primarily related to Taxes, or (B) with any other Group Company or any of not more than seven its current Affiliates), or (7ix) months)fail to pay any material Taxes when due;
(vvi) enter into, renew or amend in any material respect respect, any transaction or Contract (A) with an Affiliate of SPAC (including, for the avoidance of doubt, (x) Sponsor and (y) any Person in which Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of five percent (5%) or more), (B) with any SPAC Related Party Stockholder except as permitted or contemplated by this Agreement or (other than C) between SPAC and any Working Capital Loans incurred in the ordinary course of business not broker, finder, investment banker or financial advisor with respect to exceed $1,000,000 in the aggregate);
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate)Transactions;
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based awards with respect to SPAC Securities or other equity interests in SPAC, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viii) enter into any agreement to do any action prohibited under this Section 9.3(a).
(b) During the Interim Period, except as set forth on Section 9.3(b7.3(a)(vii) of the SPAC Disclosure Letter Schedules, incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell or guaranty any debt securities or warrants or other rights to acquire any debt securities or guaranty any debt securities of another Person;
(viii) (A) make any material change in its accounting principles, policies, procedures or methods unless required by an amendment in GAAP made subsequent to the date of this Agreement, as consented agreed to by the Company in writing its independent accountants, or (which consent shall not be unreasonably conditioned, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(iB) engage in any conduct in a new line of business or activity of engage in any sort whatsoever material commercial activities (other than in connection with to consummate the Domestication Merger or acquire any assets prior to the Domestication MergerTransactions contemplated by this Agreement);
(iiix) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(vA) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock SPAC Capital Stock or other securities of Merger Sub 1 exercisable for or convertible into SPAC Capital Stock or (B) grant any options, warrants, convertible securities warrants or other equity-based awards with respect to SPAC Capital Stock not outstanding on the date of this Agreement and disclosed in documents filed publicly with the SEC or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the SPAC Warrant Agreement, including any amendment, modification or reduction of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1the warrant price set forth therein;
(vix) waive, release, compromise, settle or agree to waive, release, compromise, or settle any Action;
(xi) except as set forth on Section 7.3(a)(xi) of the SPAC Disclosure Schedules, (A) hire, or otherwise enter into any employment, consulting or similar agreement with, any person, (B) grant any increase in the compensation of any current or former officer or director, (C) adopt any benefit plan for the benefit of any current or former officer or director, or (D) materially amend any existing agreement with any current or former officer or director;
(xii) except as set forth on Section 7.3(a)(xii) of the SPAC Disclosure Schedules, make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants, other than business expenses advanced to officers or directors in the Ordinary Course), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any Person;
(xiii) liquidate, dissolve, reorganize or otherwise wind wind-up the its business and operations of Merger Sub 1operations;
(viixiv) acquire split, combine, reclassify, recapitalize or hold otherwise amend any terms of any shares or series of SPAC Capital Stock or equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3interests;
(viiixv) takeexcept as set forth on Section 7.3(a)(xv) of the SPAC Disclosure Schedules, purchase, repurchase, redeem (except for the exercise of the SPAC Share Redemption) or fail to takeotherwise acquire any issued and outstanding share capital, any action if such actionoutstanding shares of capital stock, membership interests or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatmentother equity interests of SPAC; or
(ixxvi) enter into any formal or informal agreement or otherwise make a binding commitment to do any of the actions action prohibited by under this Section 9.3(b)7.3.
(cb) During the Interim Period, each of SPAC and Merger Sub 1 shall comply in all material respects with, and continue performing under, as applicable, their respective its Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or material Contracts to which SPAC or Merger Sub 1 it may be a party.
Appears in 1 contract
Samples: Business Combination Agreement (Jupiter Acquisition Corp)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except Except (i) as otherwise explicitly contemplated expressly permitted by this Agreement or the Ancillary Agreements, (including ii) as contemplated expressly required by applicable Law, (iii) as disclosed in Section 8.3(a) of the Domestication Merger), SPAC Disclosure Letter or (iv) as expressly consented to by the Company Xxxxxxx in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed), during the Interim Period, SPAC shall operate its business in the ordinary course and consistent with past practice. Ordinary Course.
(b) Without limiting the generality of the foregoingSection 8.3(a), except (w) as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated expressly permitted by this Agreement or the Ancillary Agreements or Agreements, (x) as expressly required by applicable Law, (y) as disclosed in Section 8.3(b) of the SPAC Disclosure Letter or (z) as consented to by Xxxxxxx in writing, SPAC shall not:
(i) change, modify or amend the Trust Agreement, the Warrant Agreement or the SPAC Governing Documents of SPAC, or seek any approval from SPAC Shareholders with respect to any such change, modification or amendment, in each case except as contemplated by the Transaction ProposalsDocuments;
(ii) form or establish a Subsidiary;
(xiii) make or declare any dividend or distribution to the SPAC Shareholders Stockholders or make any other distributions in respect of any of SPAC Ordinary Shares or other share capital or equity interests of SPAC, its Equity Securities;
(yiv) split, combine, reclassify reclassify, recapitalize or otherwise amend any terms of any SPAC Ordinary Shares or other share capital or equity interests in SPAC, or of its Equity Securities;
(zv) purchase, repurchase, redeem or otherwise acquire any of its issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPACEquity Securities, other than a redemption of SPAC Class A Ordinary Shares Stock (prior to the Effective Time) made as part of a SPAC Share Redemptions or in connection with the Domestication MergerRedemption;
(iiivi) merge, consolidate or amalgamate with or into, or acquire (by purchasing a substantial portion of the assets of or equity in, or by any other manner) any other Person or business, or be acquired by any other Person;
(vii) (A) make, change or revoke any material election in respect of Taxes, except to comply with GAAP or applicable Law, or settle or compromise any material United States federal, state, local or non-United States Tax claim or Liability, except in the Ordinary Course, or (B) change any annual Tax accounting period, adopt or change any material method of Tax accounting, amend any material Tax Returns or file claims for material Tax refunds, enter into any material “closing agreement” as described in Section 7121 of the Code (or any similar Law) with any Governmental Authority with respect to any Tax, waive or extend any statute of limitations period in respect of a material amount of Taxes, settle any material Tax claim, audit or assessment, or surrender any right to claim a material Tax refund, offset or other reduction in a material Tax Liability;
(viii) take, agree to take, or fail to take, any action if such action, or failure to take such action, would that could reasonably be expected to prevent, impair or impede prevent the Transactions from qualifying for the Intended Tax Treatment;
(iv) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respect, (B) adopt or change any material accounting method in respect of Taxes, (C) enter into any material closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) or enter into any material Tax Sharing Agreement, (D) settle or consent to any material claim or assessment in respect of Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course of not more than seven (7) months);
(vix) enter into, renew or amend in any material respect respect, any transaction or Contract (A) with any SPAC Related Party (an Affiliate of SPAC, other than any Working Capital Loans incurred in the ordinary course of business not transaction or Contract pursuant to exceed $1,000,000 in the aggregate);
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions or in support of the ordinary course operations of SPAC (which the Parties agree shall include Sponsor or any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate);
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based awards with respect its Affiliates provides debt financing to SPAC Securities or other equity interests in SPACwith the prior written consent of Xxxxxxx, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viii) enter into any agreement to do any action prohibited under this Section 9.3(a).
(b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed conditioned or denieddelayed, (B) Merger Sub 1 shall not, with any SPAC Stockholder except as otherwise permitted or contemplated by this Agreement or the Ancillary Agreements or (C) with any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater;
(x) other than (A) Indebtedness existing as explicitly contemplated of the date hereof or (B) debt financing provided by the Sponsor or any of its Affiliates to SPAC in the Ordinary Course (including, for the avoidance of doubt, any fees, loans or expenses incurred by SPAC in connection with seeking an extension of the Transactions SPAC Business Combination Deadline), incur, assume or required by Law or in connection with guarantee any Permitted Action:
(i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger or acquire any assets prior to the Domestication MergerIndebtedness;
(iixi) amend make any material change in its accounting principles, policies, procedures or otherwise change the Governing Documents of Merger Sub 1 except as otherwise methods unless required to implement the Transactionsby GAAP or applicable Law;
(iiixii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(vA) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class SPAC Stock or rights exercisable for or convertible into shares of capital stock SPAC Stock, or other securities of Merger Sub 1 or (B) grant any options, warrants, convertible securities warrants or other rights equity-based awards with respect to SPAC Stock not outstanding on the date of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1this Agreement;
(vixiii) waive, release, settle, compromise or otherwise resolve any Action, except where such waivers, releases, settlements or compromises or other resolutions involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;
(xiv) except as otherwise required by applicable Law, (A) make any change in its key management structure, including the hiring of additional officers (other than such hiring to fill vacancies in the Ordinary Course) or the termination of existing officers, other than terminations for cause or due to death or disability, including entering into any employment, collective bargaining, consulting or similar arrangement with any such Persons, (B) increase the cash compensation or bonus opportunity of any officer or director, except in the Ordinary Course, (C) establish any trust or take any other action to secure the payment of any compensation payable by it or (D) except in the Ordinary Course, take any action to amend or waive any performance or vesting criteria or to accelerate the time of payment or vesting of any compensation or benefit payable by it;
(xv) except as otherwise required by applicable Law, (A) hire, or otherwise enter into any employment, collective bargaining, consulting or similar agreement with, any officer or director of SPAC, (B) grant any increase in the compensation of any officer or director of SPAC, (C) adopt any “employee benefit plan” (within the meaning of Section 3(3) of ERISA) for the benefit of any current or former officer or director, or (D) materially amend any existing agreement with any current or former officer or director;
(xvi) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, agents or consultants, other than business expenses advanced to officers or directors in the Ordinary Course), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of any Person;
(xvii) liquidate, dissolve, reorganize or otherwise wind wind-up the its business and operations of Merger Sub 1;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatmentoperations; or
(ixxviii) enter into any agreement or otherwise make a binding commitment to do any of the actions action prohibited by under this Section 9.3(b8.3(b). Nothing contained in this Agreement shall be construed to give to Xxxxxxx or any other Xxxxxxx Company or any of their respective Affiliates, directly or indirectly, rights to control or direct the operations of SPAC during the Interim Period.
(c) During the Interim Period, each of other than as would not, individually or in the aggregate, have a SPAC and Merger Sub 1 Material Adverse Effect, SPAC shall (i) comply with, and continue performing under, its Governing Documents and all SPAC Material Contracts and (ii) comply with all applicable Laws. If, during the Interim Period, SPAC (A) receives written notice of, any actual, alleged or potential violation of any applicable Law, (B) becomes a party to or the subject of any pending (or to the knowledge of SPAC, threatened) Action by or before any Governmental Authority (including receipt of any subpoena) related to any actual, alleged or potential violation of any applicable Law, or (C) to the knowledge of SPAC, otherwise becomes aware of any actual, alleged or potential violation of any applicable Law, it shall provide written notice to Xxxxxxx within one Business Day of the discovery of the actual, alleged or potential violation.
(d) Notwithstanding anything herein to the contrary, SPAC agrees that, during the Interim Period, it shall take the actions, or refrain from taking the actions, as applicable, their respective Governing Documents, as set forth in Section 8.3(d) of the Trust Agreement, the Warrant Agreement and all other agreements or Contracts to which SPAC or Merger Sub 1 may be a partyDisclosure Letter.
Appears in 1 contract
Samples: Business Combination Agreement (ExcelFin Acquisition Corp.)
SPAC Conduct of Business. (a) During the Interim Period, SPAC shall, except as otherwise explicitly contemplated by this Agreement (including as contemplated by the Domestication MergerPIPE Investment or FPA Termination), or as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), operate its business in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), SPAC shall not, except as otherwise contemplated by this Agreement (including as contemplated by the PIPE Investment) or the Ancillary Agreements or as required by Law:
(i) seek any approval from SPAC Shareholders, to change, modify or amend the Trust Agreement, the Warrant Agreement or the Governing Documents of SPAC, or seek any approval from SPAC Shareholders with respect to any such change, modification or amendment, in each case except as contemplated by the Transaction ProposalsProposals or otherwise to obtain SPAC Extension;
(ii) (x) make or declare any dividend or distribution to SPAC Shareholders or make any other distributions in respect of any of SPAC Ordinary Shares or other SPAC’s Capital Stock, share capital or equity interests of SPACinterests, (y) split, combine, reclassify or or, save pursuant to the FPA Termination, otherwise amend any terms of any SPAC Ordinary Shares shares or other share capital series of SPAC’s Capital Stock or equity interests in SPACinterests, or (z) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPAC, other than a redemption of SPAC Class A Ordinary Shares made as part of SPAC Share Redemptions or in connection with the Domestication MergerRedemptions;
(iii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment;
(iv) make or change any material election in respect of Taxes, (A) amend, modify or otherwise change any filed material Tax Return in a material respectReturn, (B) adopt or request permission of any taxing authority to change any material accounting method in respect of material Taxes, (C) enter into any material closing agreement within the meaning in respect of Section 7121 of the Code (or any corresponding or similar provision of state, local or non‑U.S. law) material Taxes or enter into any material Tax Sharing Agreementsharing or similar agreement, (D) settle or consent to any material claim or assessment in respect of material Taxes, (E) surrender or voluntarily allow to expire any right to claim a refund of material Taxes, (F) file any Tax Return in a manner that is inconsistent with the past practices of SPAC or (G) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any material Tax attribute (other than an extension in the ordinary course that would give rise to any claim or assessment of not more than seven (7) months)Taxes;
(viv) other than as expressly required by the SPAC Investor Support Agreement or to give effect to the FPA Termination, enter into, renew or amend in any material respect respect, any transaction or Contract with an Affiliate of SPAC (including, for the avoidance of doubt, (x) the Sponsor and (y) any SPAC Related Party Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of 5% or greater);
(v) incur or assume any Indebtedness or guarantee any Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of the Company’s Subsidiaries or guaranty any debt securities of another Person, other than any Working Capital Loans indebtedness for borrowed money or guarantee incurred in the ordinary course of business consistent with past practice and in an aggregate amount not to exceed $1,000,000 in the aggregate)100,000;
(vi) incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness or otherwise knowingly and purposefully incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any other material liabilities, debts or obligations, other than fees and expenses for professional services incurred in support of the Transactions transactions contemplated by this Agreement and the Ancillary Agreements or in support of the ordinary course operations of SPAC (which the Parties parties agree shall include any Indebtedness in respect of any Working Capital Loan incurred in the ordinary course of business, not to exceed $1,000,000 in the aggregate);
(vii) (A) issue any SPAC Securities or other equity interests in SPAC (including securities exercisable for or convertible into SPAC Securities), (B) grant any options, warrants or other equity‑based equity-based awards with respect to SPAC Securities or other equity interests in SPACnot outstanding on the date hereof, or (C) save pursuant to the FPA Termination, amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; or
(viii) enter into any agreement to do any action prohibited under this Section 9.3(a)8.3.
(b) During the Interim Period, except as set forth on Section 9.3(b) of the SPAC Disclosure Letter or as consented to by the Company in writing (which consent shall not be unreasonably conditionedshall, withheld, delayed or denied) Merger Sub 1 shall not, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as explicitly contemplated in connection with the Transactions or required by Law or in connection with any Permitted Action:
(i) engage in any business or activity of any sort whatsoever other than in connection with the Domestication Merger or acquire any assets prior to the Domestication Merger;
(ii) amend or otherwise change the Governing Documents of Merger Sub 1 except as otherwise required to implement the Transactions;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the Merger Sub 1 Common Stock except as otherwise required to implement the Transactions;
(v) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock or other securities of Merger Sub 1 or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), of Merger Sub 1;
(vi) liquidate, dissolve, reorganize or otherwise wind up the business and operations of Merger Sub 1;
(vii) acquire or hold any equity securities or rights thereto in any other Person, other than SPAC in accordance with the applicable provisions set forth in Article 2 and Article 3;
(viii) take, or fail to take, any action if such action, or failure to take such action, would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or
(ix) enter into any agreement or otherwise make a binding commitment to do any of the actions prohibited by this Section 9.3(b).
(c) During the Interim Period, each of SPAC and Merger Sub 1 shall comply with, and continue performing under, as applicable, their respective SPAC’s Governing Documents, the Trust Agreement, the Warrant Agreement and all other agreements or Contracts to which SPAC or Merger Sub 1 may be a party, except that SPAC agrees that it shall cause the FPA Termination to occur in accordance with and as contemplated by Section 8.7.
Appears in 1 contract
