Without limiting Section 6. 1(a), from the Effective Date until the earlier of the Closing and the date this Agreement is terminated in accordance with Article X, except (i) as set forth on Section 6.1(b) of the Disclosure Schedules, (ii) as expressly contemplated or permitted by this Agreement, (iii) as required by applicable Law, Order or Governmental Entity, or (iv) as consented to in writing (including via e-mail) by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not take any of the following actions: (i) amend or modify any of its Organizational Documents or change the authorized Equity Interests (or the terms thereof); (ii) split, combine, subdivide, recapitalize or reclassify any of its Equity Interests or issue or authorize the issuance of any other Equity Interest in respect of, in lieu of or in substitution for any of its other Equity Interests; (iii) declare, set aside, make or pay any dividend or other distribution in respect of its Equity Interests, other than dividends or distributions in Cash and Cash Equivalents paid in advance of the Adjustment Time; (iv) authorize for issuance, issue or sell or agree or commit to issue or sell (whether through the granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any of its Equity Interests or transfer any Equity Interests; (v) redeem or repurchase any of its Equity Interests or other ownership interests (except in connection with a termination of employment; provided, that the transactions contemplated by such redemption close prior to the second (2nd) Business Day prior to the Closing and contain a customary release from the terminated employee); (vi) enter into an Add-On Acquisition or Disposition Transaction; (vii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, asset purchase or similar transaction, recapitalization or other restructuring; (viii) mortgage, pledge, encumber or otherwise subject any material property or material asset to any Encumbrance, except for Permitted Encumbrances; (ix) incur, assume or guarantee any Indebtedness (other than to the extent the amount is included in Company Indebtedness or constitutes Parent Company Debt Guaranty Obligations under the Parent Company Credit Facility); (x) sell, lease, sublease, exclusively license, assign, transfer or otherwise dispose of any property or asset (or group of properties or assets), other than sales of obsolete equipment or other assets sold or disposed of in the ordinary course of business; (xi) sell, assign, transfer, abandon, let lapse or otherwise dispose of or exclusively license to a third party any Intellectual Property material to the Company, except in the ordinary course of business consistent with past practice; (xii) except as expressly required pursuant to the terms of a Company Employee Plan in effect as of the Effective Date, (A) increase the compensation payable or to become payable or the benefits provided to its directors, managers, officers or employees, except for increases in the ordinary course of business consistent with past practices, (B) hire other than to fill open positions, terminate other than for cause or change the material responsibilities of any officer or other key employee, (C) make or grant any material increase in, or contribute any material amount to, any Company Employee Plan, or materially amend or terminate any existing Company Employee Plan sponsored solely by the Company or adopt or establish any Company Employee Plan, (D) take any action to accelerate the time of vesting, funding or payment of any compensation or benefits under any Company Employee Plan or (E) enter into any collective bargaining or similar agreement with any labor organization; (xiii) materially defer or make any material commitments for capital expenditures that would be required to be paid after the Closing, except (A) in the ordinary course of business or (B) for such capital expenditures or commitments involving future payments not in excess of One Hundred and Twenty Thousand Dollars (USD $120,000) in the aggregate; (xiv) make any (A) loans or advances to (other than the payment of salary and benefits in the ordinary course of business or the payment, advancement or reimbursement of expenses in the ordinary course of business) any Persons; (B) guarantees for the benefit of any Persons; or (C) capital contributions to, or investment in, any Person; (xv) change material accounting policies or procedures, except as required by GAAP or applicable Law; (xvi) enter into any merger, consolidation, recapitalization or other business combination or make any other acquisition of any business; (xvii) except as expressly provided in this Agreement, (A) amend, waive any material right or accelerate any material obligation under or terminate (except in the event the term thereof ends) any Disclosable Contract or (B) enter into any Contract that would be considered a Disclosable Contract if entered into prior to the Effective Date; provided, however, that the foregoing shall in no event prohibit the Company from renewing Disclosable Contracts on substantially similar terms in the ordinary course of business; (xviii) settle, release, waive, or compromise any active, pending or threatened Litigation or other disputes other than settlements, releases, waivers or compromises for active, pending or threatened Litigation or other disputes (A) that do not impose material restrictions or changes on the business or operations of the Company and (B) where the amount paid in settlement or compromise less any amounts covered by insurance does not exceed Sixty Thousand Dollars (USD $60,000) individually or One Hundred and Twenty Thousand Dollars (USD $120,000) in the aggregate for all such Litigation, except, in each case, to the extent such amounts are to be paid prior to the Adjustment Time; (xix) enter into any Contract or other transaction with any Affiliate of the Company; (xx) make, change or revoke any material Tax election; adopt or change any material Tax accounting method; enter into any closing agreement in respect of Taxes; prepare or file any income or other material Tax Return inconsistent with past practice unless required by applicable Law; amend any material Tax Return unless required by applicable Law; request any ruling from a Governmental Entity with respect to Taxes; settle any material Tax claim or assessment; or 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 Tax attribute that would give rise to any claim or assessment of material Taxes; (xxi) effectuate a “plant closing” or “mass layoff” as those terms are defined in the WARN or any similar state Law, affecting in whole or in part any site of employment, facility, operating unit or employee; (xxii) conclude or agree to any corrective action plan, corporate integrity agreement or Order; (xxiii) fail to maintain in full force and effect its material insurance policies in a form and amount consistent with past practices; (xxiv) factor or otherwise sell any accounts receivable arising after the date of this Agreement; (xxv) take any action that would have a Company Material Adverse Effect or a Seller Material Adverse Effect; (xxvi) enter into any collective bargaining agreement or similar agreement except when required by Law; or (xxvii) enter into any Contract, commitment or undertaking to do any of the activities prohibited by the foregoing provisions of this Section 6.1(b).
Appears in 1 contract
Without limiting Section 6. 1(a), from the Effective Date until the earlier of the Closing and the date this Agreement is terminated in accordance with Article X, except (i) as set forth on Section 6.1(b) of the Disclosure SchedulesSchedule, (ii) as expressly contemplated or permitted by this Agreementfor the period commencing on the date hereof and ending on the Closing Date, (iii) as required by applicable Law, Order or Governmental Entity, or (iv) as consented to in writing (including via e-mail) by Buyer unless the Purchaser otherwise consents (which consent shall not be unreasonably withheld, conditioned or delayed), except as otherwise required by this Agreement including pursuant to obligations set forth in this Agreement or pursuant to Section 6.15, the Company and its Subsidiaries shall not take any of the following actionsnot:
(i) amend or modify any authorize the amendment of its Organizational Documents certificate of incorporation or change the authorized Equity Interests bylaws (or the terms thereofequivalent organizational documents);
(ii) other than any cash dividends, declare, set aside, make, pay or effect any recapitalization, reclassification, stock dividend (or other distribution or payment), stock split, combine, subdivide, recapitalize combination or reclassify like change in its capitalization or amend the terms of any outstanding securities of the Company or any of its Equity Interests or issue or authorize the issuance of any other Equity Interest in respect of, in lieu of or in substitution for any of its other Equity InterestsSubsidiaries;
(iii) declareissue, set asidesell or deliver any of the Company’s or its Subsidiaries’ securities, make securities convertible into equity securities or pay any dividend options, warrants or other distribution in respect of rights to purchase the Company’s or its Equity Interests, other than dividends or distributions in Cash and Cash Equivalents paid in advance of the Adjustment TimeSubsidiaries’ equity securities;
(iv) authorize for issuance, issue or sell enter into or agree to enter into any merger or commit to issue consolidation with any Person, engage in any new business or sell invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities or a substantial portion of the assets of, any other Person (whether through other than any loan, advance or capital contribution between the granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any of Company and its Equity Interests or transfer any Equity InterestsSubsidiaries);
(v) redeem make any change in any method of accounting or repurchase any of its Equity Interests or other ownership interests (except in connection with a termination of employment; provided, that the transactions contemplated by such redemption close prior to the second (2nd) Business Day prior to the Closing and contain a customary release from the terminated employee);
(vi) enter into an Add-On Acquisition or Disposition Transaction;
(vii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, asset purchase or similar transaction, recapitalization or other restructuring;
(viii) mortgage, pledge, encumber or otherwise subject any material property or material asset to any Encumbrance, except for Permitted Encumbrances;
(ix) incur, assume or guarantee any Indebtedness (accounting policy other than to the extent the amount is included in Company Indebtedness or constitutes Parent Company Debt Guaranty Obligations under the Parent Company Credit Facility);
(x) sell, lease, sublease, exclusively license, assign, transfer or otherwise dispose of any property or asset (or group of properties or assets), other than sales of obsolete equipment or other assets sold or disposed of in the ordinary course of business;
(xi) sell, assign, transfer, abandon, let lapse or otherwise dispose of or exclusively license to a third party any Intellectual Property material to the Company, except in the ordinary course of business consistent with past practice;
(xii) except as expressly required pursuant to the terms of a Company Employee Plan in effect as of the Effective Date, (A) increase the compensation payable or to become payable or the benefits provided to its directors, managers, officers or employees, except for increases in the ordinary course of business consistent with past practices, (B) hire other than to fill open positions, terminate other than for cause or change the material responsibilities of any officer or other key employee, (C) make or grant any material increase in, or contribute any material amount to, any Company Employee Plan, or materially amend or terminate any existing Company Employee Plan sponsored solely by the Company or adopt or establish any Company Employee Plan, (D) take any action to accelerate the time of vesting, funding or payment of any compensation or benefits under any Company Employee Plan or (E) enter into any collective bargaining or similar agreement with any labor organization;
(xiii) materially defer or make any material commitments for capital expenditures that would be required to be paid after the Closing, except (A) in the ordinary course of business or (B) for such capital expenditures or commitments involving future payments not in excess of One Hundred and Twenty Thousand Dollars (USD $120,000) in the aggregate;
(xiv) make any (A) loans or advances to (other than the payment of salary and benefits in the ordinary course of business or the payment, advancement or reimbursement of expenses in the ordinary course of business) any Persons; (B) guarantees for the benefit of any Persons; or (C) capital contributions to, or investment in, any Person;
(xv) change material accounting policies or procedures, except as required by GAAP or applicable Law;
(xvivi) enter into any merger, consolidation, recapitalization or other business combination or make any other acquisition of any business;
(xvii) except as expressly provided in this Agreement, (A) amendmake any change in Tax reporting principles, waive any material right practices or accelerate any material obligation under policies, including with respect to (x) depreciation or terminate amortization policies or rates or (except in y) the event payment of accounts payable or the term thereof ends) any Disclosable Contract or collection of accounts receivable; (B) enter into any Contract that would be considered a Disclosable Contract if entered into prior to the Effective Date; provided, however, that the foregoing shall in no event prohibit the Company from renewing Disclosable Contracts on substantially similar terms in the ordinary course of business;
(xviii) settle, release, waive, settle or compromise any active, pending or threatened Litigation or other disputes other than settlements, releases, waivers or compromises for active, pending or threatened Litigation or other disputes Tax liability; (A) that do not impose material restrictions or changes on the business or operations of the Company and (B) where the amount paid in settlement or compromise less any amounts covered by insurance does not exceed Sixty Thousand Dollars (USD $60,000) individually or One Hundred and Twenty Thousand Dollars (USD $120,000) in the aggregate for all such Litigation, except, in each case, to the extent such amounts are to be paid prior to the Adjustment Time;
(xix) enter into any Contract or other transaction with any Affiliate of the Company;
(xxC) make, change or revoke rescind any material Tax election; adopt or change , (D) surrender any material Tax accounting method; enter into any closing agreement right in respect of Taxes; prepare or file any income or other material Tax Return inconsistent with past practice unless required by applicable Law; amend any material Tax Return unless required by applicable Law; request any ruling from a Governmental Entity with respect to Taxes; settle any material Tax claim or assessment; or , (E) 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 (F) amend any Tax attribute that would give rise to any claim or assessment of material TaxesReturn;
(xxivii) effectuate a “plant closing” increase the compensation or “mass layoff” benefits (including severance benefits) payable or to become payable to or grant any bonuses (including change in control, retention, transaction or stay bonuses) or salary increase to any of its officers, directors, employees, agents, independent contractors or consultants, enter into, amend or terminate any Employment Agreement or other agreement or employee benefit plan, make or amend any loans to any of its officers, directors, employees, affiliates, agents, independent contractors or consultants or make any change in its existing borrowing or lending arrangements for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise, in any case except (A) as those terms are defined required by applicable Law, (B) any annual salary increases made in the WARN Ordinary Course or any similar state Law, affecting (C) payments relating to the transactions contemplated hereby that are to be paid at or prior to the Closing (but not after the Closing) and that do not exceed $50,000 per recipient or $500,000 in whole or in part any site of employment, facility, operating unit or employeethe aggregate;
(xxiiviii) conclude hire or agree to terminate (other than a termination for cause) any corrective action planemployee, corporate integrity agreement officer, director, consultant or Orderindependent contractor of the Company or any of its Subsidiaries;
(xxiiiix) fail issue, create, incur, endorse, guarantee or assume any Indebtedness in excess of $250,000 (other than pursuant to maintain Contracts entered into in full force and effect its material insurance policies in a form and amount consistent with past practicesthe Ordinary Course) or Liens (other than Permitted Liens);
(xxivx) factor make any loan or otherwise sell advance to any accounts receivable arising after officer, director, employee or member of the date Company or any of this Agreementits Subsidiaries (except pursuant to an Employee Benefit Plan);
(xxvxi) enter into, amend or terminate (A) a Company Contract other than in the Ordinary Course or (B) a Company Contract of the kind described in Sections 4.13(a)(iii), (v), (vi), (viii) or (x);
(xii) institute, settle or compromise any legal proceeding (other than matters (x) involving the payment of less than $300,000 by the Company or any of its Subsidiaries or (y) in respect of which the Company and its Subsidiaries are fully indemnified pursuant to the Lithotech Agreement) or waive or release any right or claim against a third Person;
(xiii) take any action that which would, or would have a Company Material Adverse Effect or a Seller Material Adverse Effect;
(xxvi) enter into any collective bargaining agreement or similar agreement except when required by Lawreasonably be expected to, adversely affect the ability of the Parties to consummate the Merger; or
(xxviixiv) enter into any Contract, commitment agree or undertaking commit to do any of the activities prohibited by the foregoing provisions of this Section 6.1(b)actions set forth in clauses (i) through (xiii) above.
Appears in 1 contract
Samples: Merger Agreement (Nordson Corp)
Without limiting Section 6. 1(a03(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents, as required by applicable Law (including COVID-19 Measures), from in connection with the Effective Date until incurrence of transaction related costs in the earlier of the Closing and the date this Agreement is terminated in accordance with Article Xordinary course, except (i) or as set forth on Section 6.1(b6.03(b) of the Parent Disclosure SchedulesLetter, during the Interim Period, without the prior written consent of the Company (ii) as expressly contemplated or permitted by this Agreement, (iii) as required by applicable Law, Order or Governmental Entity, or (iv) as consented such consent not to in writing (including via e-mail) by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), neither the Company shall not take any of Parent nor the following actionsMerger Subs shall:
(i) amend amend, waive or modify otherwise change, in any of respect, its Organizational Documents except as required by applicable Law or change the authorized Equity Interests (or the terms thereof)in connection with an Extension;
(ii) other than in connection with a conversion of the Working Capital Loans, (A) authorize for issuance, issue, grant, sell, charge, pledge, mortgage or dispose of or propose to issue, grant, sell, charge, pledge, mortgage or dispose of any of its Equity Securities or other security interests of any class and any other equity-based awards; or (B) engage in any hedging transaction with a third Person with respect to such securities;
(iii) (A) subdivide, split, consolidate, combine, subdivide, recapitalize or reclassify any of its shares or other Equity Interests Securities or issue or authorize the issuance of any other Equity Interest securities in respect of, in lieu of such shares or in substitution for any of its other Equity Interests;
Securities; (iiiB) declare, pay or set aside, make or pay aside any dividend or other distribution (whether in cash, equity or property or any combination of cash, equity or property) in respect of its shares or other Equity InterestsSecurities; or (C) directly or indirectly redeem, other than dividends purchase or distributions in Cash and Cash Equivalents paid in advance otherwise acquire or offer to acquire any of the Adjustment Timeits Equity Securities;
(iv) authorize (A) incur, create, assume, prepay or otherwise become liable for issuanceany Indebtedness (directly, issue contingently or sell otherwise and including Working Capital Loans) in excess of $2,000,000 in the aggregate; (B) make a loan or agree advance to or commit to issue investment in any third party; or sell (whether through the granting C) guarantee or endorse any Indebtedness, Liability or obligation of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any of its Equity Interests or transfer any Equity InterestsPerson;
(v) redeem (A) make, change or repurchase rescind any of its Equity Interests material election relating to Taxes; (B) settle any claim, suit, litigation, proceeding, arbitration, investigation, audit, controversy or other ownership interests Legal Proceeding relating to material Taxes; (except C) file any amended Income Tax or other material Tax Return; (D) surrender or allow to expire any right to claim a refund of material Taxes; (E) change or request to change any method of accounting for Tax purposes; (F) waive or extend any statute of limitations in connection respect of a period within which an assessment or reassessment of material Taxes may be issued or in respect of any material Tax attribute that would give rise to any claim or assessment of Taxes of or with a termination of employment; provided, that the transactions contemplated by such redemption close prior respect to the second Parent; or (2ndG) Business Day prior to enter into any “closing agreement” as described in Section 7121 of the Closing and contain a customary release from the terminated employee)Code or any similar agreement or arrangement with any Governmental Authority, in each case except as required by applicable Law;
(vi) enter into an Add-On Acquisition amend, waive or Disposition Transactionotherwise change the Trust Agreement in any manner adverse to the Parent;
(vii) terminate, waive or assign any material right under any material Contract of the Parent;
(viii) fail to maintain its books, accounts and records in all material respects in the ordinary course of business;
(ix) establish any Subsidiary or enter into any new line of business;
(x) fail to maintain in full force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations, properties and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xi) make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP or PCAOB standards;
(xii) waive, release, assign, settle or compromise any claim, action, proceeding or investigation (including any suit, action, claim, proceeding or investigation relating to this Agreement or the Transactions), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Parent or its Subsidiary) not in excess of $50,000 (individually or in the aggregate);
(xiii) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division of any corporation, partnership, limited liability company or other business organization, or any material amount of assets outside the ordinary course of business;
(xiv) make capital expenditures;
(xv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, asset purchase or similar transactionrestructuring, recapitalization or other restructuringreorganization;
(viiixvi) mortgagevoluntarily incur any Liability or obligation (whether absolute, pledgeaccrued, encumber contingent or otherwise subject otherwise) in excess of $250,000 in the aggregate (excluding the incurrence of any material property or material asset to any Encumbrance, except for Permitted Encumbrances;
(ixexpenses) incur, assume or guarantee any Indebtedness (other than to the extent the amount is included in Company Indebtedness or constitutes Parent Company Debt Guaranty Obligations under the Parent Company Credit Facility);
(xA) sell, lease, sublease, exclusively license, assign, transfer or otherwise dispose of any property or asset (or group of properties or assets), other than sales of obsolete equipment or other assets sold or disposed of in the ordinary course of business;
(xi) sell, assign, transfer, abandon, let lapse or otherwise dispose of or exclusively license to a third party any Intellectual Property material to the Company, except in the ordinary course of business consistent with past practice;
(xii) except as expressly required pursuant to the terms of a Company Employee Plan Contract in effect existence as of the Effective Signing Date, (A) increase the compensation payable or to become payable or the benefits provided to its directors, managers, officers or employees, except for increases in the ordinary course of business consistent with past practices, (B) hire other than to fill open positions, terminate other than for cause or change the material responsibilities of any officer or other key employee, (C) make or grant any material increase in, or contribute any material amount to, any Company Employee Plan, or materially amend or terminate any existing Company Employee Plan sponsored solely by the Company or adopt or establish any Company Employee Plan, (D) take any action to accelerate the time of vesting, funding or payment of any compensation or benefits under any Company Employee Plan or (E) enter into any collective bargaining or similar agreement with any labor organization;
(xiii) materially defer or make any material commitments for capital expenditures that would be required to be paid after the Closing, except (A) in the ordinary course of business or (B) for such capital expenditures or commitments involving future payments not in excess of One Hundred and Twenty Thousand Dollars (USD $120,000) in the aggregate;
(xiv) make any (A) loans or advances to (other than the payment of salary and benefits in the ordinary course of business or the payment, advancement or reimbursement of expenses in the ordinary course of business) any Persons; (B) guarantees for the benefit of any PersonsWorking Capital Loans (subject to Section 6.03(b)(iv) above); or (C) capital contributions toin accordance with the terms of this Section 6.03 during the Interim Period incurred in connection with its performance of its obligations under, or investment inas otherwise as contemplated by, any Person;
(xv) change material accounting policies or procedures, except as required by GAAP or applicable Law;
(xvi) enter into any merger, consolidation, recapitalization or other business combination or make any other acquisition of any businessthis Agreement;
(xvii) except as expressly provided in this Agreementsell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (A) amendincluding securitizations), waive or otherwise dispose of any material right portion of its tangible properties, assets or accelerate any material obligation under or terminate (except in the event the term thereof ends) any Disclosable Contract or (B) enter into any Contract that would be considered a Disclosable Contract if entered into prior to the Effective Date; provided, however, that the foregoing shall in no event prohibit the Company from renewing Disclosable Contracts on substantially similar terms in the ordinary course of businessrights;
(xviii) settle, release, waive, or compromise any active, pending or threatened Litigation or other disputes other than settlements, releases, waivers or compromises for active, pending or threatened Litigation or other disputes (A) that do not impose material restrictions or changes on the business or operations of the Company and (B) where the amount paid in settlement or compromise less any amounts covered by insurance does not exceed Sixty Thousand Dollars (USD $60,000) individually or One Hundred and Twenty Thousand Dollars (USD $120,000) in the aggregate for all such Litigation, except, in each case, to the extent such amounts are to be paid prior to the Adjustment Time;
(xix) enter into any Contract or other transaction with any Affiliate of the Company;
(xx) make, change or revoke any material Tax election; adopt or change any material Tax accounting method; enter into any closing agreement in respect of Taxes; prepare or file any income or other material Tax Return inconsistent with past practice unless required by applicable Law; amend any material Tax Return unless required by applicable Law; request any ruling from a Governmental Entity with respect to Taxes; settle any material Tax claim or assessment; or 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 Tax attribute that would give rise to any claim or assessment of material Taxes;
(xxi) effectuate a “plant closing” or “mass layoff” as those terms are defined in the WARN or any similar state Law, affecting in whole or in part any site of employment, facility, operating unit or employee;
(xxii) conclude or agree to any corrective action plan, corporate integrity agreement or Order;
(xxiii) fail to maintain in full force and effect its material insurance policies in a form and amount consistent with past practices;
(xxiv) factor or otherwise sell any accounts receivable arising after the date of this Agreement;
(xxv) take any action that would have a Company Material Adverse Effect reasonably be expected to significantly delay or a Seller Material Adverse Effectimpair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxvixix) enter into grant or establish any collective bargaining agreement form of compensation or similar agreement except when required by Lawbenefits to any current or former employee, officer, director, individual independent contractor or other individual service provider of the Parent; or
(xxviixx) enter into any Contract, commitment authorize or undertaking agree to do any of the activities prohibited by the foregoing provisions of this Section 6.1(b)actions.
Appears in 1 contract
Samples: Business Combination Agreement (Learn CW Investment Corp)
Without limiting Section 6. 1(a02(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents (including the Merger), from the Effective Date until the earlier of the Closing and the date this Agreement is terminated in accordance with Article X, except (i) as required by applicable Law or as set forth on Section 6.1(b6.02(b) of the Company Disclosure SchedulesLetter, during the Interim Period, without the prior written consent of the Parent (ii) as expressly contemplated or permitted by this Agreement, (iii) as required by applicable Law, Order or Governmental Entity, or (iv) as consented such consent not to in writing (including via e-mail) by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries not take any of the following actionsto:
(i) amend amend, waive or modify otherwise change, in any of material respect, its Organizational Documents or change the authorized Equity Interests (or the terms thereof)Documents, except as required by applicable Law;
(ii) authorize for issuance, issue, grant, sell, charge, pledge, mortgage or dispose of or propose to issue, grant, sell, charge, pledge, mortgage or dispose of any of its Equity Securities and any other equity-based awards except pursuant to and in compliance with existing Company Benefits Plans or any Contract (including any warrant, option or profits interest award) outstanding as of the Signing Date that has been disclosed in writing to the Parent. Notwithstanding the foregoing, the Target Companies may issue Equity Securities or debt securities pursuant to (A) a Permitted Financing or (B) an Additional Financing;
(iii) engage in any hedging transaction with a third person with respect to any Equity Securities of the Target Companies other than in connection with a Permitted Financing;
(iv) (A) subdivide, split, consolidate, combine, subdivide, recapitalize or reclassify any of its shares or other Equity Interests Securities or issue or authorize the issuance of any other Equity Interest securities in respect of, in lieu of such shares or in substitution for any of its other Equity Interests;
(iii) declare, set aside, make Securities or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination of cash, equity or property) in respect of its Equity InterestsSecurities, other than dividends or distributions in Cash and Cash Equivalents paid in advance of the Adjustment Time;
(ivB) authorize for issuancedirectly or indirectly redeem, issue or sell or agree or commit to issue or sell (whether through the granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) otherwise acquire or offer to acquire any of its Equity Interests Securities, except in each case (x) with respect to the Merger or transfer (y) for distributions to holders of equity interests in any Equity InterestsTarget Company that is a pass-through for U.S. federal, and applicable state and local, income Tax purposes as necessary to enable such holders to timely pay their income Taxes, including estimated income Taxes, attributable to their ownership of such Target Company. Notwithstanding the foregoing, the amount of any distributions described in this clause (y) shall: (I) be determined in a manner that reduces any such taxable income allocated to such holder by any prior taxable losses allocated to such holder and not previously offset against net taxable income allocated to such holder to the extent such losses would be usable to offset the applicable taxable income of such taxable period; and (II) not exceed $300,000 in the aggregate;
(v) redeem other than (i) Indebtedness in an aggregate amount not to exceed $250,000 incurred pursuant to existing credit facilities or repurchase any of its Equity Interests or other ownership interests (except in connection with the refinancing of existing credit facilities (inclusive of Indebtedness incurred as of the Signing Date pursuant to such facilities), (ii) Indebtedness incurred in a termination Permitted Financing, (y) Indebtedness incurred in the Additional Financing or (iii) amounts in the aggregate not in excess of employment; provided, that the transactions contemplated by such redemption close prior $1,000,000 pursuant to the second terms of a Company Material Contract or Company Benefit Plan, voluntarily incur Liabilities or obligations (2nd) Business Day prior to the Closing and contain a customary release from the terminated employeewhether absolute, accrued, contingent or otherwise);
(vi) except as otherwise required by Law or the terms of any Company Benefit Plan as in effect on the Signing Date and set forth in Section 4.18(a) of the Company Disclosure Letter, (A) grant any severance, retention, change in control or termination or similar pay; (B) terminate, adopt, enter into into, or modify or amend or grant any new awards under any Company Benefit Plan or any plan, policy, practice, program, agreement or other arrangement that would be deemed a Company Benefit Plan if in effect as of the Signing Date; (C) issue or grant any options, profits interests, phantom units or any other equity or equity-linked awards; (D) grant or announce any increase in the compensation or benefits of any current or former employee, officer, director or other individual service provider, except for base cash compensation increases (and corresponding increases to incentive compensation opportunities) in the ordinary course of business for employees whose annual base cash compensation is less than $250,000; (E) 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 the Company or any of the Company’s Subsidiaries; (F) hire or engage any employee or other individual service provider, other than in the ordinary course of business with respect to any such service provider who will receive annual base compensation of less than $250,000; (G) terminate the employment or engagement, other than for cause, death or disability, of any employee or other individual service provider, other than in the ordinary course of business with respect to any such service provider with an Add-On Acquisition annual base compensation less than $250,000; (H) waive or Disposition Transactionrelease any restrictive covenants applying to any current or former employee or other industrial service provider; (I) plan, announce, implement or effect a reduction in force, lay off, furloughs, early retirement program, severance program or other program or effort concerning the termination of a group of employees of the Target Companies (other than individual employee terminations for cause permitted under prong (G) of this Section 6.02(b)(v)); or (J) take other such actions that would reasonably be expected to implicate the WARN Act;
(vii) enter into, amend, modify, negotiate, terminate or extend any Labor Agreement, or recognize or certify any labor union, works council, labor organization or group of employees of the Target Company as the bargaining representative for any employees of the Target Company;
(viii) (A) make, change or rescind any material election relating to Taxes; (B) settle any claim, suit, litigation, proceeding, arbitration, investigation, audit, controversy or other Legal Proceeding relating to material Taxes; (C) file any amended Income Tax or other material Tax Return; (D) surrender or allow to expire any right to claim a refund of material Taxes; (E) change or request to change any method of accounting for Tax purposes; (F) waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of material Taxes may be issued or in respect of any material Tax attribute that would give rise to any claim or assessment of Taxes of or with respect to the Target Companies; or (G) enter into any “closing agreement” as described in Section 7121 of the Code or any similar agreement or arrangement with any Governmental Authority, in each case except as required by applicable Law;
(A) transfer, sell, assign, license, sublicense, covenant not to assert, subject to a Lien (other than a Permitted Lien), abandon, allow to lapse, transfer or otherwise dispose of, any right, title or interest of the Target Company in or to any Owned Intellectual Property material to any of the businesses of the Target Companies (other than (x) non-exclusive licenses of Owned Intellectual Property granted in the ordinary course of business or (y) abandoning, allowing to lapse or otherwise disposing of Owned Intellectual Property registrations or applications that the Target Company, in the exercise of its good faith business judgment, has determined to abandon, allow to lapse or otherwise dispose of); (B) otherwise materially amend or modify, permit to lapse or fail to preserve any material Company Registered IP (excluding non-exclusive licenses of Company IP to Target Company customers in the ordinary course of business); (C) disclose, divulge, furnish to or make accessible any material Trade Secrets constituting Owned Intellectual Property to any Person who has not entered into a confidentiality agreement sufficiently protecting the confidentiality of such material Trade Secrets constituting Owned Intellectual Property; or (D) include, incorporate or embed in, link to, combine, make available or distribute with, or use in the development, operation, delivery or provision of any Company Software any Open Source Software in a manner that requires any Target Company to take a Copyright Action;
(x) (A) terminate, waive any material provisions of, materially amend or assign any Company Material Contract; or (B) enter into any Contract that would be a Company Material Contract;
(xi) establish any Subsidiary or enter into any new line of business;
(A) fail to use reasonable best efforts to maintain in full force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, properties, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect; or (B) terminate without replacement or amend in a manner materially detrimental to any Target Company, any material insurance policy insuring the Target Companies;
(xiii) make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP or changes that are made in accordance with PCAOB standards;
(xiv) waive, release, assign, settle or compromise any claim, action or proceeding (including any relating to this Agreement or the Transactions), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $1,000,000 (individually or in the aggregate);
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination (A) any corporation, partnership, limited liability company, other business organization or any division of any corporation, partnership, limited liability company or other business organization; or (B) any material amount of assets outside the ordinary course of business, except in each case pursuant to any Contract in existence as of the Signing Date which has been disclosed in writing to the Parent;
(xvi) other than (A) capital expenditures in the ordinary course of business or (B) capital expenditures as reflected in the Company’s capital staging scenario previously provided to the Parent, make individual capital expenditures in excess of $500,000;
(xvii) (A) fail to pay within a reasonable amount of time following the time due and payable, material amounts of accounts payable (other than any account payable that is, at such time, subject to a bona fide dispute); or (B) other than in the ordinary course of business, fail to use reasonable best efforts to collect within a reasonable amount of time following the time due, discount or otherwise reduce any account receivable, in each case, in a manner that would reasonably be expected to materially reduce the Company’s working capital;
(xviii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, asset purchase or similar transaction, recapitalization restructuring or other restructuringreorganization;
(viii) mortgage, pledge, encumber or otherwise subject any material property or material asset to any Encumbrance, except for Permitted Encumbrances;
(ix) incur, assume or guarantee any Indebtedness (other than to the extent the amount is included in Company Indebtedness or constitutes Parent Company Debt Guaranty Obligations under the Parent Company Credit Facility);
(xxix) sell, lease, sublease, exclusively license, assigntransfer, transfer exchange or swap, mortgage or otherwise pledge or encumber (including securitizations) or otherwise dispose of any property material portion of its tangible properties, assets or asset rights;
(xx) enter into any agreement, understanding or group arrangement with respect to the voting of properties Equity Securities of the Company;
(xxi) take any action that would reasonably be expected to significantly delay or assets)impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(xxii) enter into, amend, waive or terminate (other than sales terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of obsolete equipment or other assets sold or disposed of expenses, in each case, provided in the ordinary course of business);
(xixxiii) sell, assign, transfer, abandon, let lapse or otherwise dispose of or exclusively license to a third party any Intellectual Property material to the Company, except in the ordinary course of business consistent with past practice;
(xii) except as expressly required pursuant to the terms of a Company Employee Plan in effect as of the Effective Date, (A) increase limit the compensation payable or to become payable or the benefits provided to its directors, managers, officers or employees, except for increases in the ordinary course of business consistent with past practices, (B) hire other than to fill open positions, terminate other than for cause or change the material responsibilities right of any officer Target Company to: (w) engage in any line of business; (x) operate in any geographic area; (y) develop, market or other key employee, (C) make sell products or grant any material increase in, or contribute any material amount to, any Company Employee Plan, or materially amend or terminate any existing Company Employee Plan sponsored solely by the Company or adopt or establish any Company Employee Plan, (D) take any action to accelerate the time of vesting, funding or payment of any compensation or benefits under any Company Employee Plan services; or (Ez) enter into any collective bargaining or similar agreement compete with any labor organization;
(xiii) materially defer or make any material commitments for capital expenditures that would be required to be paid after the Closing, except (A) in the ordinary course of business Person; or (B) for such capital expenditures grant any exclusive or commitments involving future payments not in excess of One Hundred and Twenty Thousand Dollars (USD $120,000) in the aggregate;
(xiv) make any (A) loans or advances similar rights to (other than the payment of salary and benefits in the ordinary course of business or the payment, advancement or reimbursement of expenses in the ordinary course of business) any Persons; (B) guarantees for the benefit of any Persons; or (C) capital contributions to, or investment in, any Person;
(xv) change material accounting policies or procedures, except as required by GAAP or applicable Law;
(xvi) enter into any merger, consolidation, recapitalization or other business combination or make any other acquisition of any business;
(xvii) except as expressly provided in this Agreement, (A) amend, waive any material right or accelerate any material obligation under or terminate (except in the event the term thereof ends) any Disclosable Contract or (B) enter into any Contract that would be considered a Disclosable Contract if entered into prior to the Effective Date; provided, however, that the foregoing shall in no event prohibit the Company from renewing Disclosable Contracts on substantially similar terms in the ordinary course of business;
(xviii) settle, release, waive, or compromise any active, pending or threatened Litigation or other disputes other than settlements, releases, waivers or compromises for active, pending or threatened Litigation or other disputes (A) that do not impose material restrictions or changes on the business or operations of the Company and (B) where the amount paid in settlement or compromise less any amounts covered by insurance does not exceed Sixty Thousand Dollars (USD $60,000) individually or One Hundred and Twenty Thousand Dollars (USD $120,000) in the aggregate for all such Litigation, except, in each case, to except where such limitation or grant does not, and would not be reasonably likely to, individually or in the extent such amounts are to be paid prior to aggregate, materially and adversely affect, or materially disrupt, the Adjustment Time;
(xix) enter into any Contract or other transaction with any Affiliate ordinary course operation of the Company;
(xx) make, change or revoke any material Tax election; adopt or change any material Tax accounting method; enter into any closing agreement in respect of Taxes; prepare or file any income or other material Tax Return inconsistent with past practice unless required by applicable Law; amend any material Tax Return unless required by applicable Law; request any ruling from a Governmental Entity with respect to Taxes; settle any material Tax claim or assessment; or consent to any extension or waiver business of the limitation period applicable to any claim or assessment in respect of material Taxes or in respect to any Tax attribute that would give rise to any claim or assessment of material Taxes;
(xxi) effectuate a “plant closing” or “mass layoff” as those terms are defined in the WARN or any similar state Law, affecting in whole or in part any site of employment, facility, operating unit or employee;
(xxii) conclude or agree to any corrective action plan, corporate integrity agreement or Order;
(xxiii) fail to maintain in full force and effect its material insurance policies in a form and amount consistent with past practicesTarget Companies;
(xxiv) factor take any action, or otherwise sell intentionally fail to take any accounts receivable arising after action, that would reasonably be expected to significantly delay or impair the date satisfaction of this Agreementthe conditions set forth in Article VII or that would impede the Transactions;
(xxv) take any action that would have a Company Material Adverse Effect pay, remit, dividend, contribute, or a Seller Material Adverse Effect;
(xxvi) enter into any collective bargaining agreement otherwise disburse, or similar agreement except when required by Law; or
(xxvii) enter into any Contract, commitment or undertaking agree to do any of the activities prohibited by foregoing with respect to, the proceeds of any Additional Financing; or
(xxvi) authorize or agree to do any of the foregoing provisions of this Section 6.1(b)actions.
Appears in 1 contract
Samples: Business Combination Agreement (Learn CW Investment Corp)
