Certain Actions. (a) From the date of this Agreement through the Effective Time, except as otherwise permitted by this Section 6.11, PVFC will not, and will not authorize or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal. (b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement. (c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same. (d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives. (e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (PVF Capital Corp), Merger Agreement (FNB Corp/Fl/)
Certain Actions. From the Effective Date until the Closing Date, Sellers shall not take any of the following actions without first obtaining the consent of Buyer (which shall not be unreasonably withheld or delayed), and if necessary the Bankruptcy Court:
(a) From the date of this Agreement through the Effective Timeamend or terminate any Assumed Contract, except as otherwise permitted by this Section 6.11, PVFC will not, and will not authorize or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter new Contract involving a commitment on the part of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.Seller in excess of Two Hundred Fifty Thousand Dollars ($250,000);
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data make offers to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board employees of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations Business for employment with any third partyPerson after Closing or make any material change in personnel, PVFC promptly notifies FNB in writing operations, finances, accounting policies, or real or personal property of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.Business;
(c) PVFC will promptlyincrease compensation payable or to become payable to, and in make a bonus or severance payment to, or otherwise enter into one or more bonus or severance agreements with, any event within 24 hours, notify FNB in writing of the receipt employee or agent of any Acquisition Proposal Seller except pursuant to the Retention Plan or any information related thereto, which notification shall describe other plan approved by the Acquisition Proposal Bankruptcy Court (and identify the third party making the same.Sellers' pre-petition bank lenders);
(d) PVFC agrees that it willcreate, and will cause the PVFC Representatives to, immediately cease and cause assume or permit to be terminated exist any activities, discussions or negotiations existing as new Encumbrance upon any of the date of this Agreement with any parties conducted heretofore with respect Assets, except to any Acquisition Proposal. PVFC or its Representatives shall promptly after provide adequate protection as is required by the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.Bankruptcy Court;
(e) For purposes sell, assign, transfer, distribute or otherwise transfer or dispose of this Agreement:any property, plant or equipment of any Seller (other than an Excluded Asset) having a value in excess of Fifty Thousand Dollars ($50,000);
(f) take any action (other than in connection with the Bankruptcy Cases and filing the Sale Motion) outside the ordinary course of the Business, except as permitted by the Bankruptcy Court;
(g) amend or agree to amend the articles or certificate of incorporation or other organizational documents or the bylaws or other governing documents of any Seller or otherwise take any action relating to any liquidation or dissolution of any Seller;
(h) create, incur, assume, guarantee or otherwise become liable for any liability of any other Seller, or agree to do any of the foregoing;
(i) cancel, forgive, release, discharge or waive any receivable or any similar Asset or right with respect to the Business, or agree to do any of the foregoing;
(j) change any accounting method, policy or practice in the Financial Statements; or
(k) terminate, amend or otherwise modify any Employee Benefit Plan or Other Plan, except for amendments required to comply with applicable Legal Requirements or as requested by Buyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Shaw Group Inc), Asset Purchase Agreement (Shaw Group Inc)
Certain Actions. (a) From In addition, without limiting the generality of Section 5.1, except as expressly contemplated by this Agreement or except as set forth in Part 5.2 of the Company Disclosure Letter, without the prior written consent of Parent, during the period from the date of this Agreement through and continuing until the earlier of (x) the termination of this Agreement pursuant to its terms or (y) the Effective Time, except as otherwise permitted by this Section 6.11, PVFC will not, and will the Company shall not authorize or permit do any of the following and shall not permit its directorssubsidiaries to do any of the following:
(a) terminate, officerswaive or fail to exercise any stock repurchase rights by which Company Common Stock may be repurchased for a per share price of less than $0.268, agentsaccelerate, employeesamend or change the period of exercisability of options to purchase Company Common Stock or restricted Company Common Stock, investment bankersor reprice any outstanding options to purchase Company Common Stock or authorize cash payments in exchange for any options to purchase Company Common Stock;
(b) grant, attorneyspay or agree to grant or pay any severance (including change-of-control) or termination pay or other amounts to any Employee, accountantscontractor, advisorsconsultant or agent (except (i) pursuant to written agreements in effect, agentsor policies existing, affiliates on the date hereof with respect to which the aggregate amount payable thereunder does not exceed $50,000, (ii) as disclosed in Part 3.12 of the Company Disclosure Letter or representatives (collectivelyiii) as required by Applicable Law), “PVFC Representatives”or increase the amount of any such pay or amounts, or adopt any new severance (including change-of-control) toplan;
(c) transfer or license to any Person or otherwise extend, amend or modify in any material respect any Company IP Rights, other than non-exclusive licenses in the ordinary course of business and consistent with past practice;
(d) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock of the Company or split, combine or reclassify any capital stock of the Company or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock;
(e) purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of the Company or its subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any Employee pursuant to stock option or purchase agreements in effect on the date hereof;
(if) initiateissue, solicitdeliver, encourage sell, authorize, pledge or take otherwise encumber any action to facilitate, including by way shares of furnishing information, capital stock or any Acquisition Proposal, as defined in Section 6.11(e)(i)securities convertible into shares of capital stock of the Company, or subscriptions, rights, warrants or options to acquire any inquiries with respect to or shares of capital stock of the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC Company or any securities convertible into shares of capital stock of the PVFC Subsidiaries or afford access to the businessCompany, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into other Contracts of any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating character obligating it to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by issue any such third partyshares or convertible securities, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior issuance, delivery and/or sale of shares of Company Common Stock pursuant to the termination exercise of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing Company Stock Options outstanding as of the date of this Agreement Agreement;
(g) cause, permit or propose any amendments to the Company Charter Documents other than the Articles of Amendment;
(h) acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any Person; or otherwise acquire or agree to acquire any assets that are material, individually or in the aggregate, to the Business or enter into any material joint ventures, strategic relationships or alliances;
(i) sell, lease, license, encumber or otherwise dispose of any properties or assets; provided, that the foregoing shall not prohibit the Company and its subsidiaries from selling, leasing, licensing, encumbering or otherwise disposing of equipment in the ordinary course of business consistent with past practice;
(j) incur any parties conducted heretofore indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any of its subsidiaries, enter into any “keep well” or other Contract to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing;
(k) adopt or amend any employee benefit plan or employee stock purchase or employee stock option plan, or enter into any employment or contractor Contract or collective bargaining Contract (excluding, for the avoidance of doubt only, the provision of offer letters to Employees in the ordinary course of business consistent with past practice with Employees who are terminable “at will” or in accordance with the minimum requirements of Applicable Law), pay any special bonus or special remuneration or offer any retention plans or payments or change-in-control plans or payments to any director, Employee, contractor, consultant or agent, make any loan or provide any advance to any director, Employee, contractor, consultant or agent, or increase the salaries or wage rates or fringe benefits (including rights to severance (including change-of-control) or indemnification) of its directors, Employees, contractors, consultants or agents other than in the ordinary course of business, consistent with past practice, or change in any material respect any management policies or procedures;
(l) make any material capital expenditures outside of the ordinary course of business or outside of the budget previously provided to Parent;
(m) fail to collect account receivables and pay account payables, or to otherwise manage working capital, in the ordinary course of business consistent with past practice;
(n) enter into, materially modify, amend or terminate any Company Material Contract or waive, release or assign any material rights or claims thereunder;
(o) enter into any Contract with regard to the acquisition or licensing of any material Intellectual Property Rights other than licenses, distribution Contracts or other similar Contracts entered into in the ordinary course of business consistent with past practice;
(p) materially revalue any of its assets or, except as required by GAAP, make any change in accounting methods, principles or practices;
(q) engage in any action with the intent to directly or indirectly adversely impact any of the Transactions, including with respect to any Acquisition Proposal. PVFC Takeover Statute;
(r) without limiting the foregoing, take any action or its Representatives shall promptly after fail to take any action reasonably within the date Company’s control, that would cause any representation or warranty of this Agreement instruct each Person the Company to cease to be true and accurate as of the Closing as though then first made;
(s) except with respect to Intellectual Property Rights (which has heretofore executed a confidentiality agreement are addressed in subsection (t) below), settle any claim, suit, action, arbitration, dispute or other proceeding (or related series thereof) (i) that involves, or would reasonably be expected to have an adverse effect on, any material assets or operations of the Company or (ii) by making one or more payments or transferring other consideration valued in excess of $50,000;
(t) settle any claim, suit, action, arbitration, dispute or other proceeding directly or indirectly relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy any Intellectual Property Rights; or
(which destruction shall be certified u) agree in writing by such Person or otherwise commit or negotiate to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or take any of its Representatives to such Person or any of such Person’s Representatives the actions described in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s RepresentativesSection 5.2(a) through (t) above.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (At&t Inc.), Merger Agreement (Superclick Inc)
Certain Actions. (a) From the date of this Agreement through the Effective Time, except as otherwise permitted by this Section 6.11, PVFC CBI will not, and will not authorize or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC CBI Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC CBI or any of the PVFC its Subsidiaries or afford access to the business, properties, assets, books or records of PVFC CBI or any of the PVFC Subsidiariesits Subsidiaries to, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC CBI and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC CBI shall not withdraw or modify in a manner adverse to FNB the PVFC CBI Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFCCBI’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would could reasonably be reasonably likely expected to result in a breach of their its fiduciary duties under applicable Lawlaw, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFCCBI’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC CBI than those contained in the Confidentiality Agreements between PVFC CBI and FNB, a copy of which executed confidentiality agreement shall have been provided to FNB for informational purposes and (z) at least 48 72 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC CBI promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC CBI Recommendation (the “Change in PVFC CBI Recommendation”) if PVFCCBI’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their its fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreementlaw.
(c) PVFC CBI will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC CBI agrees that it will, and will cause the PVFC CBI Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Comm Bancorp Inc), Agreement and Plan of Merger (FNB Corp/Fl/)
Certain Actions. (a) From During the period between the date hereof and the earlier of the Effective Date or the termination of this Agreement through the Effective TimePlan, except as otherwise permitted contemplated by this Section 6.11Plan of Merger, PVFC will Colonial Bank shall not, and without first obtaining the written approval of VRB, which will not authorize be unreasonably withheld:
(a) Amend its Articles of Incorporation or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.Bylaws;
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted Declare or pay any dividend (except (i) to comply with Rule 14d-9 dividends on its preferred stock as required by the terms thereof and Rule 14e-2 promulgated under (ii) in the Exchange Act with event the closing occurs after February 28, 1998, a dividend not in excess of Colonial Bank's adjusted net income after December 31, 1997 through the date of closing calculated without regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify items described in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection clauses (iii) belowi), (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) of Section 6.13); redeem, repurchase or otherwise acquire or agree to withdraw, modify, qualify in a manner adverse to FNB, condition acquire any Colonial Bank Stock or refuse make or commit to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure any other distribution to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.Colonial Bank's stockholders;
(c) PVFC will promptlyIssue, and in sell, or deliver; agree to issue, sell or deliver; or grant or agree to grant any event within 24 hours, notify FNB in writing shares of any class of the receipt stock of Colonial Bank; any Acquisition Proposal securities convertible into any of such shares; or any information related theretooptions, which notification shall describe the Acquisition Proposal and identify the third party making the same.warrants, or other rights to purchase;
(d) PVFC agrees that it willExcept in the ordinary course of business, and will cause the PVFC Representatives borrow or agree to borrow any funds or voluntarily incur, assume or become subject to, immediately cease and cause whether directly or by way of guarantee or otherwise, any commitment, obligation or liability (absolute or contingent); or cancel or agree to be terminated cancel any activities, discussions debts or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.claims;
(e) For purposes Except in the ordinary course of this Agreement:business, lease, sell or transfer; agree to lease, sell or transfer, or grant or agree to grant any preferential rights to lease or acquire, any of its assets, property or rights, or make or permit any amendment or termination of any contract, agreement, instrument or other right to which Colonial Bank is a party and which is material to Colonial Bank's business, assets, earnings, operation or condition (financial or otherwise); or mortgage, pledge or subject to a lien or any other encumbrance any of its assets, tangible or intangible;
Appears in 2 contracts
Sources: Plan of Merger (VRB Bancorp), Plan of Merger (VRB Bancorp)
Certain Actions. (a) From the date of Except with respect to this Agreement through and the Effective Timetransactions contemplated hereby, except as otherwise permitted by this Section 6.11, PVFC will not, and will not authorize or permit neither ACE nor any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or Stockholder nor any affiliate thereof nor any representatives (collectively, “PVFC Representatives”) to, thereof shall directly or indirectly, indirectly (i) initiate, solicit, initiate or knowingly encourage or take the submission of any action to facilitate, including by way of furnishing information, any Acquisition Proposal, Takeover Proposal (as defined in Section 6.11(e)(i), below) or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations withregarding, or furnish to any person any nonpublic information relating with respect to, or take any other action designed or reasonably likely to PVFC facilitate any inquiries or the making of any of the PVFC Subsidiaries or afford access proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that Meeting the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes ACE determines in good faith, after consultation with outside counsel, that failure it is reasonably advisable to do so would be reasonably likely in order to result in a breach of their comply with its fiduciary duties to stockholders under applicable Lawlaw, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) prior to providing any information or data to any third party participate in connection with a Superior Proposal by any discussions and negotiations regarding such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Takeover Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
(e) For purposes of this Agreement:, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of business), or more than a 20% interest in the total voting securities of ACE or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiaries.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Parts Source Inc), Stock Purchase Agreement (Parts Source Inc)
Certain Actions. (a) From Without the date prior written consent of this Agreement through the Effective TimeHolders, except as otherwise permitted by this Section 6.11which consent may be withheld in the sole discretion of the Holders, PVFC the Company will not, and will not authorize permit any Subsidiary to:
(a) permit to occur any amendment, alteration, or modification of the Bylaws of the Company, as constituted on the date of this Agreement, the effect of which, in the sole judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of the Company under this Agreement, the Warrants, the Certificate or the Shareholder Agreement or permit to occur any amendment, alteration, or modification of the Restated Articles of Incorporation or other charter or organizational documents of the Company, as constituted on the date of this Agreement except to the extent necessary to comply with Section 4.04(j) or 4.10;
(b) except as otherwise permitted in the Certificate or required by the Shareholder Agreement, (i) declare or make any dividends or distributions of its directorscash, officersstock, agentsproperty, employeesor assets or redeem, investment bankersretire, attorneyspurchase, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) tootherwise acquire, directly or indirectly, any of the Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company, or any securities convertible or exchangeable into Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company or otherwise make any distribution on account of the purchase, repurchase, redemption, put, call or other retirement of any shares of Capital Stock of the Company or any Subsidiary thereof or of any warrant, option or other right to acquire such shares (iexcept pursuant to the Purchase Documents or the Certificate) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, (each as defined in Section 6.11(e)(i11.1 of the Note Agreement), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into make any payment or participate in distribution on account of any discussions or negotiations with, furnish any information relating to PVFC or any Indebtedness of the PVFC Subsidiaries or afford access Company which is subordinate to the businessSenior Subordinated Notes (except that Subsidiaries may make distributions to the Company), properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or and (iii) except as otherwise provided for in accordance with Section 8.1(g)the Note Agreement, approve, endorse pay any professional consulting or recommend or enter into any letter of intent or similar document management fees or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data other payments to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligationParent or any Subsidiary; provided, however, that if the Board following shall be permitted as exceptions to the preceding provisions of Directors this clause (b): declare and make payments of PVFC shall have effected a Change (A) dividends in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as cash from Subsidiaries of the date hereof may not be rescinded), in which event Company to the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto Company to the extent required necessary to permit the Company or its Subsidiaries to pay the Senior Subordinated Obligations (as defined in Section 11.1 of the Note Agreement) due and payable from the Company or its Subsidiaries to each Purchaser, (B) dividends or stock repurchases permitted by applicable Law. In addition the Senior Loan Agreement (as defined in Section 11.1 of the Note Agreement), and (C) dividends on the Preferred Stock as provided in the Certificate and payments made pursuant to the foregoing, PVFC shall not submit to Purchase Documents (as defined in Section 11.1 of the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Note Agreement.);
(c) PVFC will promptlyeffect any sale, lease, assignment, transfer, or other conveyance of any material portion of the assets or operations or the revenue or income generating capacity of the Company (other than inventory in the ordinary course of business and other assets reasonably and in any event within 24 hours, notify FNB in writing good faith determined by the Company to be obsolete or no longer necessary to the business of the receipt Company and other asset dispositions permitted by the Senior Loan Agreement including the Asset Transfer (as defined in the Senior Loan Agreement)) or to take any such action that has the effect of any Acquisition Proposal or any information related thereto, which notification shall describe of the Acquisition Proposal and identify the third party making the same.foregoing;
(d) PVFC agrees except for issuances of stock permitted by the Senior Loan Agreement, the Permitted Stock, the Acquisition Merger, the Subsidiary Mergers (each as defined in Section 11.1 of the Note Agreement) and the other mergers permitted by the Senior Loan Agreement or pursuant to the express terms of this Agreement or the Shareholder Agreement, issue or sell, or otherwise dispose of any Capital Stock (including the Series B Preferred Stock) or Capital Stock of any Subsidiary, dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock of the Company or of any Subsidiary;
(e) enter into any business that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated Company or any activities, discussions or negotiations existing as of Subsidiary is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise except for businesses and acquisitions permitted by the Senior Loan Agreement);
(f) except for the employment agreements disclosed in Schedule 7.10 to the Note Agreement and except for Permitted Stock, enter into any transaction or transactions with any parties conducted heretofore director, officer, employee, or shareholder of the Company, or any Affiliate or relative of the foregoing except upon terms that, in the opinion of the Holders, are fair and reasonable and that are, in any event, at least as favorable as would result in a comparable arm's-length transaction with respect a Person not a director, officer, employee, shareholder, or Affiliate of the Company or any Affiliate or related party of the foregoing, or advance any monies to any Acquisition Proposal. PVFC or its Representatives shall promptly after such Persons, except for travel advances in the date ordinary course of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or business;
(g) except for the benefit employment agreements disclosed in Schedule 7.10 to the Note Agreement, increase the amount of PVFC remuneration permitted under Section 7.10 of the Note Agreement;
(h) except for (i) acquisitions permitted under the Note Agreement and Section 9.2 of the Senior Loan Agreement, (ii) Permitted Indebtedness (as defined in Section 11.1 of the Note Agreement), and (iii) other capital contributions, permitted purchases, advances and loans permitted by the Senior Loan Agreement, acquire any debt or equity interest in any Person or establish or acquire a Subsidiary or make any additional capital contribution or purchase any additional equity in any Subsidiary or make any advances or loans to promptly return any Subsidiary or destroy transfer any technology or assets to any Subsidiary;
(which destruction shall be certified i) except for the employment agreements disclosed in writing by such Person Schedule 7.10 of the Note Agreement, modify, amend, terminate or waive any material provision of the Employment Agreements;
(j) allow the aggregate par value of the Capital Stock subject to PVFCthe Warrants from time to time to exceed the price payable upon exercise of the Warrants, as adjusted from time to time; or
(k) all informationobligate itself or otherwise agree to take, documents and materials relating to an Acquisition Proposal permit or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or enter into any of its Representatives to such Person or any of such Person’s Representatives the events described in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representativessubsections (a) through (j) above.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Warrant Purchase Agreement (F Jotan LLC), Preferred Stock and Warrant Purchase Agreement (Jotan Inc)
Certain Actions. (a) From Effective on the date hereof and until the earlier of this Agreement through (i) October 1, 2005 and (ii) the Effective Timedate on which there are no longer outstanding any shares of Convertible Preferred Stock, except as otherwise permitted by this Section 6.11, PVFC the Stockholders will not, and will not authorize or permit any of its directorsInvestment Fund Affiliate to:
(a) make, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitatesolicit, including by initiate or encourage, an Acquisition Proposal;
(b) make, or in any way of furnishing informationparticipate in, any Acquisition Proposal, “solicitation” of “proxies” to vote (as such terms are defined in Section 6.11(e)(iRule 14a-1 under the Exchange Act), or solicit any inquiries consent with respect to the voting of any Voting Securities or nominate, or solicit any votes or proxies for the nomination of, any directors with respect to the Company (other than as contemplated by Section 2.1 hereof);
(c) form, join or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the voting of any Voting Securities (other than any “group” consisting only of the Stockholders and Investment Fund Affiliates);
(d) call or seek to have called any meeting of the stockholders of the Company;
(e) solicit, seek to effect, negotiate with or voluntarily provide any confidential information to any other Person with respect to, or otherwise make any public announcement (except as required by Law or the making requirements of any Acquisition Proposalrelevant stock exchange) whatsoever with respect to, (i) any merger or other business combination transaction involving the Company, (ii) enter into or participate the acquisition of Voting Securities if, as a result thereof, the Person acquiring such Voting Securities, together with its Affiliates, would Beneficially Own in any discussions or negotiations with, furnish any information relating to PVFC or any the aggregate more than 15% of the PVFC Subsidiaries or afford access to the businessoutstanding Voting Securities, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except the acquisition, in accordance with Section 8.1(gone transaction or a series of related transactions, of more than 50% of the assets or earning power of the Company and its subsidiaries taken as a whole (an “Acquisition Transaction”), approve, endorse or recommend or ;
(f) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information arrangement or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore understanding with respect to any Acquisition Proposal. PVFC Transaction;
(g) assist, advise or its Representatives shall promptly after encourage any other Person in doing any of the date foregoing; or
(j) request the Company to amend, waive or not to enforce any provision of this Agreement instruct section, in each Person which has heretofore executed a confidentiality agreement relating case unless specifically invited by the Company’s Board of Directors to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representativesdo so.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Stockholders Agreement (Tc Group LLC), Stockholders Agreement (Duratek Inc)
Certain Actions. (a) From the date of this Agreement through the Effective Time, except as otherwise permitted by this Section 6.11, PVFC ANNB will not, and will not authorize or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC ANNB Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC ANNB or any of the PVFC ANNB Subsidiaries or afford access to the business, properties, assets, books or records of PVFC ANNB or any of the PVFC ANNB Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC ANNB and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC ANNB shall not withdraw or modify in a manner adverse to FNB the PVFC ANNB Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFCANNB’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFCANNB’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC ANNB than those contained in the Confidentiality Agreements between PVFC ANNB and FNB, a copy of which executed confidentiality agreement shall have been provided to FNB for informational purposes and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC ANNB promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC ANNB Recommendation (the “Change in PVFC ANNB Recommendation”) if PVFCANNB’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC of ANNB Recommendation, this Agreement shall be submitted to the shareholders of PVFC ANNB at the PVFC ANNB Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC ANNB of such obligation; provided, however, that if the Board of Directors of PVFC ANNB shall have effected a Change in PVFC of ANNB Recommendation, then the Board of Directors of PVFC ANNB may submit this Agreement to PVFCANNB’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC ANNB may communicate the basis for its lack of a recommendation to PVFCANNB’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Lawlaw. In addition to the foregoing, PVFC ANNB shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC ANNB will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC ANNB agrees that it will, and will cause the PVFC ANNB Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC ANNB or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC ANNB to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFCANNB) all information, documents and materials relating to an Acquisition Proposal or to PVFC ANNB or its businesses, operations or affairs heretofore furnished by PVFC ANNB or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (FNB Corp/Fl/), Merger Agreement (Annapolis Bancorp Inc)
Certain Actions. (a) From and after the date of this Agreement through Agreement, the Effective Time--------------- Company, except as otherwise permitted by this Section 6.11without the prior written consent of the Holders (such consent being one hundred percent (100%) of the Holders with respect to each of clauses (a), PVFC (b), (f), (g), (n), (p)(iii), (p)(iv), (p)(v) and (u) below), which consent may be withheld in the sole discretion of each such Holder, will not, and will not authorize or permit any Subsidiary to:
(a) except as otherwise contemplated by this Agreement, permit to occur any amendment, alteration, or modification of its directorsarticles of incorporation, officersas amended, agentsor other charter or organizational documents of the Company, employeesin each case as constituted on the date of this Agreement, investment bankersthe effect of which, attorneysin the good faith judgment of any Holder, accountantswould be to adversely alter, advisorsimpair, agentsor affect, affiliates either the rights and benefits of any of the Holders or representatives the duties and obligations of the Company under or with respect to this Agreement, the Other Agreements, the Warrant or the Series D Preferred Stock;
(collectivelyb) except as otherwise permitted pursuant to the terms of this Agreement, “PVFC Representatives”the Other Agreements or the Amended and Restated Articles, (i) todeclare or make any dividends or distributions of its cash, stock, property or assets or (ii) redeem, retire, purchase or otherwise acquire, directly or indirectly, any of the Capital Stock of the Company or any of the Capital Stock of any Affiliate of the Company;
(c) effect any sale, lease, assignment, transfer or other conveyance of any portion of the assets or operations or the revenue or income generating capacity of the Company (other than inventory in the ordinary course of business and other assets reasonably and in good faith determined by the Company to be obsolete or no longer necessary to the business of the Company) or to take any such action that has the effect of any of the foregoing;
(d) except for the issuance of Warrant Shares upon exercise of the Warrants or as otherwise provided pursuant to the terms of this Agreement, the Other Agreements Agreement or the Amended and Restated Articles, (i) initiateissue, solicit, encourage sell or take otherwise dispose of any action to facilitate, including by way Capital Stock of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), the Company or any inquiries with respect to or the making Capital Stock of any Acquisition ProposalSubsidiary, (ii) enter into dissolve or participate in any discussions or negotiations with, furnish any information relating to PVFC liquidate the Company or any of the PVFC its Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except effect any consolidation or merger involving the Company or any reclassification, corporate reorganization, stock split, reverse stock split or other change of or in accordance with Section 8.1(g), approve, endorse or recommend or any class of Capital Stock;
(e) enter into any letter line of intent business that the Company is not conducting on the date of this Agreement or similar document acquire any substantial business operation or any contract, agreement assets (through a stock or commitment contemplating asset purchase or otherwise relating to an Acquisition Proposal.otherwise);
(bf) Notwithstanding anything in except for the issuance of Warrant Shares upon exercise of the Warrants or as otherwise provided pursuant to the terms of this Agreement to or the contraryOther Agreements, PVFC and its Board of Directors shall be permitted (i) to comply enter into any transaction or transactions with Rule 14d-9 any Initial Holder, any director, officer, employee, securityholder or Affiliate of the Company, or any Affiliate of the foregoing, except upon terms that, in the opinion of all Holders, are fair and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided reasonable and that the Board of Directors of PVFC shall not withdraw or modify are, in any event, at least as favorable as would result in a manner adverse comparable arm's-length transaction with a Person who is not a director, officer, employee, securityholder or Affiliate of the Company, or any Affiliate of the foregoing, or (ii) advance any monies to FNB any such Persons;
(g) except for ordinary and reasonable annual directors fees to be paid by the PVFC Recommendation Company to its outside directors and except as set forth otherwise provided in subsection the Monitoring Agreement, pay any management, consulting or similar fee to or for the direct or indirect benefit of any of its officers, directors, Affiliates or securityholders;
(iiii) belowacquire any debt or equity interest in any Person, (ii) to engage establish or acquire any Subsidiary not in existence as of the date hereof, (iii) make any additional capital contribution or purchase any additional equity in any discussions existing Subsidiary, (iv) make any advances or negotiations withloans to any Subsidiary or (iv) during any fiscal year of the Company, and provide transfer any information toassets to its Subsidiaries which, either alone or in the aggregate, have a fair market value in excess of two hundred fifty thousand dollars ($250,000);
(i) allow the aggregate par value of the Capital Stock subject to the Warrants from time to time to exceed the price payable upon exercise of the Warrants, as adjusted from time to time;
(j) except as otherwise provided herein, file a registration statement with the Commission or any state securities commission or agency regarding any Capital Stock of the Company;
(k) except as otherwise provided in the Senior Loan Documents, incur or suffer to exist any Indebtedness (including, without limitation, any Indebtedness incurred in respect of any revolving credit loans, term loans, capital lease obligations and/or guaranties) in excess of eight million dollars ($8,000,000);
(l) except as otherwise provided in the Senior Loan Documents, permit the assets of the Company to be subject to any Liens;
(m) undertake any litigation against any third party (other than litigation instituted against one or more account debtors of the Company with respect to one or more unpaid accounts, where the aggregate amount in response controversy is less than one hundred thousand dollars ($100,000));
(n) during any fiscal year, increase by more than five percent (5%) the total annual compensation (including, but not limited to, base salary, bonus and perquisites) of any executive officer of the Company;
(o) enter into any contract or other agreement (other than the Senior Loan Documents) that obligates the Company to a Superior Proposal, as defined make annual payments thereunder in Section 6.11(e)(iiexcess of two hundred fifty thousand dollars ($250,000), by ;
(i) terminate any such third party, if and only to Key Employee of the extent that (x) PVFC’s Board Company or any of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Lawits Subsidiaries, (yii) prior hire any Person to providing serve as Key Employee of the Company or any information or data of its Subsidiaries, (iii) grant any additional equity-based compensation to any third party Key Employee of the Company or any of its Subsidiaries, (iv) make any severance payment to any Key Employee in connection with a Superior Proposal any termination of the employment of such Key Employee (other than, with respect to the Management Employees only, severance payments contemplated by any such third partythe Employment Agreements, PVFC’s Board as in effect on the Closing Date), (v) modify (A) the severance payment obligations of Directors receives from such third party an executed confidentiality agreementthe Company or (B) the incentive compensation payable by the Company, which confidentiality terms shall be no less favorable to PVFC than those contained in each case set forth in the Confidentiality Agreements between PVFC and FNB and Employment Agreements, as in effect on the Closing Date;
(zq) at least 48 hours prior to providing acquire during any information twelve (12) month period any Property or data to other assets from any third party Person or entering into discussions or negotiations with Person, the aggregate value of which exceeds five hundred thousand dollars ($500,000);
(r) adopt any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting annual budget for the purpose Company or any of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligationits Subsidiaries; provided, however, that for purposes of this Section 8.04(r) only and after the -------- ------- --------------- Closing Date, the consent of the Holders shall be deemed to have been received if the Board Holder Representatives approve such budget;
(s) make or agree to make any capital expenditures other than capital expenditures that (i) are the subject of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement contractually committed purchase orders as of the date hereof may and are disclosed on Schedule 7.01(l) or (ii) do not be rescinded)---------------- exceed two hundred fifty thousand dollars ($250,000) individually and one million dollars ($1,000,000) in the aggregate;
(t) make any tax election or settle or compromise any material tax liability or take any other action with respect to the computation of taxes or the preparation of tax returns or reports, in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.each case that is inconsistent with past practice;
(cu) PVFC will promptly, and enter into or adopt any new Employee Plan or other Benefit Arrangement or amend in any event within 24 hours, notify FNB material respect any Employee Plan or other Benefit Arrangement in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing effect as of the date of this Agreement with Agreement, in each case except as otherwise required by applicable law;
(i) fail to maintain in full force and effect any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with Permit that is required in or for the benefit conduct of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC the businesses of the Company or any of its Representatives Subsidiaries, or (ii) sell, transfer, license or otherwise dispose of any rights or interests under such Permits;
(w) except as may be required by GAAP, make any change in or to such Person its accounting methods or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and its tax or accounting principles or practices; or
(x) obligate itself or otherwise agree to destroy all summariestake, analyses permit or extracts of or based upon such information in the possession of such Person or enter into any of such Person’s Representatives.
the events described in subsections (ea) For purposes through (w) --------------- --- of this Agreement:Section 8.04. ------------
Appears in 2 contracts
Sources: Securities Exchange and Purchase Agreement (Fresh America Corp), Securities Exchange and Purchase Agreement (Fresh America Corp)
Certain Actions. (a) From During the period from the date of this Agreement through to the Effective TimeClosing or the earlier termination of this Agreement pursuant to Article 9, the Company shall not, except as otherwise permitted expressly contemplated by this Section 6.11Agreement and the transactions contemplated hereby, PVFC will notwithout the prior written consent of the other parties hereto, and will which consent shall not authorize be unreasonably withheld:
(a) do or permit effect any of the following actions with respect to its directorssecurities: (A) adjust, officerssplit, agentscombine or reclassify its capital stock; (B) make, employeesdeclare or pay any dividend or distribution on, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectlyindirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock (iexcept in connection with the use of shares of capital stock to pay the exercise price or tax withholding in connection with stock-based employee benefit plans of the Company); (C) initiategrant any person any right or option to acquire any shares of its capital stock other than pursuant to a currently authorized stock option plan; (D) issue, solicitdeliver or sell or agree to issue, encourage deliver or sell any additional shares of its capital stock or such securities (except pursuant to the exercise of outstanding convertible securities, warrants, options or rights to purchase Common Stock); or (E) enter into any agreement, understanding or arrangement with respect to the sale or voting of its preferred stock other than pursuant to the provisions of this Agreement;
(b) make or propose any changes in its Charter (or other similar organizational documents), each as amended and restated, or other organizational documents, other than the Amendment and the Restatement;
(c) merge or consolidate with any other Person or acquire a material amount of assets or capital stock of any other Person;
(d) take any action to facilitate, including by way of furnishing informationexempt under or make not subject to any applicable state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares, any Acquisition Proposal, as defined in Section 6.11(e)(i), Person (other than between the parties or their subsidiaries) or any inquiries with respect to action taken thereby, which Person or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access action would have otherwise been subject to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC restrictive provisions thereof and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.exempt therefrom;
(e) For purposes permit or cause any subsidiary to do any of this Agreement:the foregoing or agree or commit to do any of the foregoing; or
(f) agree in writing or otherwise to take any of the foregoing actions.
Appears in 2 contracts
Sources: Restructuring Agreement (Teletouch Communications Inc), Restructuring Agreement (Teletouch Communications Inc)
Certain Actions. (a) From the date of Except as expressly permitted or required pursuant to this Agreement through or any Related Document, at any time prior to the Effective Timefirst issuance of either the Series A Preferred Shares or the Series C Preferred Shares, except as otherwise permitted by this the Sentio Parties and their Subsidiaries shall (i) conduct their respective business in all material respects in the ordinary course of business consistent with past practice, (ii) use commercially reasonable efforts to preserve intact its and its Subsidiaries’ current business organizations, keep available the service of their current officers and employees and preserve their relationship with customers, suppliers, licensors, licensees, advertisers, distributors, Governmental Authorities and others having business dealings with them to the end that their goodwill and ongoing business shall be unimpaired, (iii) not take any action that could cause any representation and warranty contained in Article IV to be untrue in any material respect or cause a covenant to fail to be satisfied in any material respect.
(b) Without limiting the generality of Section 6.115.5(a), PVFC at any time prior to the first issuance of either the Series A Preferred Shares or the Series C Preferred Shares, the Sentio Parties will not, and will not authorize or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) their Subsidiaries to, directly or indirectly, do any of the following:
(i) initiate, solicit, encourage or take agree to any action to facilitatewhich would restrict, including by way materially delay or conflict with the rights and preferences of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to the Series A Preferred Shares or the making of any Acquisition Proposal, Series C Preferred Shares;
(ii) enter into declare, pay or participate in set aside for payment any discussions or negotiations with, furnish any information relating Extraordinary Dividend except (for purposes of this clause (b)) as otherwise required for the Company to PVFC or any of continue to satisfy the PVFC Subsidiaries or afford access to requirements for qualification and taxation as a REIT under the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or Code;
(iii) amend, alter or repeal the provisions of the Charter or Bylaws, whether by merger or consolidation or otherwise, so as to adversely affect any right, preference or voting power of the Series A Preferred Shares or the Series C Preferred Shares;
(iv) except as permitted in accordance with Section 8.1(g)5.13 hereof, approveredeem, endorse repurchase or recommend acquire any capital stock of the Sentio Parties or any of their Subsidiaries;
(v) other than in accordance with the provisions of this Agreement or the Related Documents, authorize, issue or reclassify any capital stock, or debt securities convertible into capital stock, of the Company and the Partnership;
(vi) other than in accordance with the provisions of this Agreement or the Related Documents, change the authorized number of members of the Board of the Company or the composition of the Board of the Company;
(vii) take any other action specified under Sections 3.2 or 3.3 of the Investor Rights Agreement which would require the consent of the Investor if such action were taken immediately following the first issuance of either the Series A Preferred Shares or the Series C Preferred Shares; or
(viii) enter into any letter of intent arrangement or similar document or any contract, agreement or commitment contemplating Contract or otherwise relating agree or commit to an Acquisition Proposal.
(b) Notwithstanding anything take any of the foregoing actions; provided that, prior to receipt by the Company of the Change of Control Consents, the Sentio Parties and their respective Subsidiaries will have no obligation to refrain from taking any of the actions described in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted clauses (i), (vi), (vii) (solely with respect to comply actions specified in Sections 3.2(b), (c), (d), (f), (h), (i), (j) and (l), Sections 3.3(b) through (d) of the Investor Rights Agreement) and (viii) (solely with Rule 14d-9 and Rule 14e-2 promulgated under respect to arrangements, Contracts, agreements or commitments to take any of the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as actions otherwise set forth in subsection (iiithis proviso) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescindedSection 5.5(b), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC The Partnership will promptlynot, and in at any event within 24 hourstime prior to the first issuance of Series B Convertible Preferred Units, notify FNB in writing amend, alter or repeal the provisions of the receipt Partnership Agreement, whether by merger or consolidation or otherwise, so as to adversely affect any right or preference of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the sameSeries B Convertible Preferred Units.
(d) PVFC agrees that it willThe Company will not, and will cause at any time prior to the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as first issuance of the date Series C Preferred Shares, whether by merger, consolidation, amendment to the Charter, operation of this Agreement with law or otherwise, effect any parties conducted heretofore with stock split, recapitalization or similar adjustment in respect of the Series A Preferred Shares unless simultaneously in connection therewith the Company effects a similar adjustment to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s RepresentativesSeries C Preferred Shares.
(e) For The Sentio Parties will not, at any time prior to the first issuance of Securities, make or rescind any material Tax election (unless required by Law or necessary to preserve the Company’s status as a REIT or the status of any of its Subsidiary as a partnership for federal tax purposes or a qualified REIT subsidiary or a taxable REIT subsidiary under the applicable provisions of this Section 856 of the Code, as the case may be), settle or compromise any material Tax liability, change an annual accounting period, adopt or change any material accounting method with respect to Taxes, enter into any closing agreement, settle or compromise any material proceeding with respect to any material Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment, enter into, amend or modify any material Tax Protection Agreement:, or take any action that would, or could reasonably be expected to, violate any material Tax Protection Agreement or otherwise give rise to any material liability of such Sentio Party or any Subsidiary thereof with respect thereto, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax.
Appears in 1 contract
Sources: Securities Purchase Agreement (Sentio Healthcare Properties Inc)
Certain Actions. (a) From Except as contemplated by this Agreement, TARGET shall not have, between the date of this Agreement through Date and the Effective Time, directly or indirectly, done or have proposed or agreed to do any of the following without prior consultation with PARENT and receipt of PARENT's prior written consent, which consent shall not be unreasonably withheld:
(a) (i) amend or otherwise change its Certificate of Incorporation or Bylaws (other than amendments which are not material to PARENT); (ii) issue, sell, pledge, dispose of, or encumber, or, authorize the issuance, sale, pledge, disposition, or encumbrance of any shares of its capital stock of any class or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest, of it, other than the issuance of TARGET capital stock upon (x) exercise of (and in accordance with the terms of) any currently outstanding options or currently outstanding warrants for capital stock of TARGET or (y) conversion or exchange of (and in accordance with the terms of) any TARGET capital stock outstanding as of the Agreement Date; (iii) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; or (iv) declare, set aside, make or pay any dividend or other distribution, whether payable in cash, stock, property or otherwise, with respect to any of its capital stock; acquire (including, without limitation, for cash or shares of stock, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets of any other Person in excess of $25,000;
(b) (i) create, incur or assume any indebtedness for borrowed money, whether or not in the ordinary course of business, or issue any debt securities in excess of $25,000; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person; (iii) make any loans or advances to any other Person other than to employees in the ordinary course of business consistent with past practice; or (iv) make or commit to make any capital expenditures in excess of $25,000, other than those proposed to be made in any financial budgets
(c) not in the ordinary course of business: (i) issue any debt securities in excess of $25,000; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person; (iii) make any loans or advances to any other Person other than to employees in the ordinary course of business consistent with past practice; or (iv) make or commit to make any capital expenditures in excess of $25,000, other than those proposed to be made in any financial budgets delivered to PARENT prior to the Agreement Date;
(i) sell, pledge, dispose of or encumber, or authorize the sale, pledge, disposition or encumbrance of any of its properties or assets, tangible or intangible, except in each case in the ordinary course of business; (ii) enter into any new Contract other than in the ordinary course of business, consistent with past practice; or (iii) amend, terminate or cancel any material contract or fail to perform in any material respect any of its obligations thereunder;
(i) change any accounting policies or procedures, change any annual accounting period or make any change in any accounting methods or systems of internal accounting controls, except as otherwise permitted by may be appropriate to conform to changes in GAAP; (ii) revalue any of its assets, including writing down the value of any assets or writing off any notes or accounts receivable; (iii) make or change any Tax election, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment, surrender any right to claim refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other action or omit to take any action, if any such action or omission would have the effect of increasing the Tax liability of PARENT or TARGET;
(f) pay, discharge or satisfy any Liens, claims, debts, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of due and payable liabilities reflected or reserved against in the TARGET Financial Statements, as appropriate, or liabilities incurred after the date of the Most Recent Balance Sheet in the ordinary course of business and consistent with past practice;
(g) increase or decrease prices charged to its customers, other than in the ordinary course of business consistent with past practice, or fail to use all commercially reasonable efforts to enforce any Contract or other agreement with any customer or supplier, collect its accounts receivable, or pay its accounts payable, in each case in the ordinary course of business consistent with past practice;
(h) except as contemplated in other provisions of this Section 6.11Agreement, PVFC will not, and will not authorize enter into any contract or permit transaction with or for the benefit of any of its directors, officers, agentsstockholders, employeesAffiliates or Associates or any entity in which any such director, investment bankersofficer, attorneysstockholder, accountantsAffiliate or Associate, advisorsor their respective Affiliates or Associates, agentshas a direct or indirect interest, affiliates whether or representatives (collectivelynot in the ordinary course of business; or agree, “PVFC Representatives”) toin writing or otherwise, directly to take or indirectly, authorize any of the foregoing actions or any action which would make any representation or warranty in Article IV hereof untrue or incorrect in any respect; or
(i) (i) solicit, initiate, solicit, encourage the initiation or take any action to facilitate, including submission by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making others of any Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations with, respond to solicitations relating to, furnish to any Person any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way withwith respect to, or knowingly assist, participate in, take any other action to encourage or facilitate any inquiries or encourage the making of any effort by any third party proposal that is seeking to makeconstitutes, or has mademay reasonably be expected to lead to, an any Acquisition Proposal Proposal; or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contractContract, agreement or commitment contemplating (whether or otherwise relating to an Acquisition Proposal.
(bnot binding) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
(e) For purposes of this Agreement:
Appears in 1 contract
Certain Actions. Without the prior written consent of each of FF-ITP and, in the case of subparagraphs (a) From ), (b), (d), (e), (f), (m), (n), (o), and (p), the date consent of this Agreement through the Effective Timeholders of a majority of the outstanding shares of Series B Preferred Stock (other than shares held by a Regulated Holder), except as otherwise permitted by this Section 6.11which consent may be withheld for any reason, PVFC the Company will not, and will not authorize permit any Subsidiary to:
(a) permit to occur any amendment, alteration, or modification of the bylaws of the Company, as constituted on the date of this Agreement, the effect of which, in the judgment of FF-ITP and the holders of a majority of the outstanding shares of Series B Preferred Stock (other than shares held by a Regulated Holder), would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of the Company under this Agreement, the Warrants, the Certificate or the Stockholder Agreement or permit to occur any amendment, alteration, or modification of the other charter or organizational documents of the Company, as constituted on the date of this Agreement except to the extent necessary to comply with Section 4.04(j) or 4.10;
(b) except as otherwise permitted in the Certificate or those Stock Repurchase Agreements dated May 30, 1997, between the Company and each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, or as required by the Stockholder Agreement or the Loan Warrant Agreement, (i) declare or make any dividends or distributions of its directorscash, officersstock property, agentsor assets or redeem, employeesretire, investment bankerspurchase, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) tootherwise acquire, directly or indirectly, (i) initiate, solicit, encourage any of the Capital Stock or take capital stock or securities of any action to facilitate, including by way Affiliate or any Subsidiary of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i)the Company, or any inquiries with respect to securities convertible or the making exchangeable into Capital Stock or capital stock or securities of any Acquisition ProposalAffiliate or any Subsidiary of the Company or otherwise make any distribution on account of the purchase, repurchase, redemption, put, call or other retirement of any shares of Capital Stock of the Company or any Subsidiary thereof or of any warrant, option or other right to acquire such shares, or (ii) enter into pay any professional consulting or participate in any discussions or negotiations with, furnish any information relating to PVFC management fees or any other payments to any shareholders of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC Parent or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligationSubsidiary; provided, however, that if the Board Company shall be permitted as exceptions to the preceding provisions of Directors this clause (b): to declare and make payments of PVFC shall have effected a Change (A) dividends in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as cash from Subsidiaries of the date hereof may not be rescinded), in which event Company to the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto Company to the extent required by applicable Law. In addition necessary to permit the foregoingCompany or its Subsidiaries to pay amounts due and payable under the Loan Agreement, PVFC shall not submit to and (B) dividends on the vote of its shareholders any Acquisition Proposal other than Preferred Stock as provided in the Merger prior to the termination of this Agreement.Certificate;
(c) PVFC will promptlyeffect any sale, lease, assignment, transfer, or other conveyance of any material portion of the assets or operations or the revenue or income generating capacity of the Company (other than inventory in the ordinary course of business and other assets reasonably and in any event within 24 hours, notify FNB in writing good faith determined by the Company to be obsolete or no longer necessary to the business of the receipt Company), or to take any such action that has the effect of any Acquisition Proposal or any information related thereto, which notification shall describe of the Acquisition Proposal and identify the third party making the same.foregoing;
(d) PVFC agrees that it willexcept for issuances of stock permitted by this Agreement, the Permitted Stock, and will cause the PVFC Representatives tomergers permitted by the Loan Agreement or pursuant to the express terms of this Agreement or the Stockholder Agreement, immediately cease and cause issue or sell, or otherwise dispose of any Capital Stock (including the Series A Preferred Stock) or Capital Stock of any Subsidiary, dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock of the Company or of any Subsidiary;
(e) issue any Capital Stock unless the holder of such Capital Stock either (i) has become a party to be terminated the Stockholder Agreement, or (ii) owns, after such issuance, less than three percent (3%) of the Company's Common Stock, assuming full exercise or conversion of all outstanding securities exercisable for or convertible into Common Stock.
(f) enter into any activities, discussions business that the Company or negotiations existing as of any Subsidiary is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise except for businesses and acquisitions permitted by the Loan Agreement);
(g) except for Permitted Stock, enter into any transaction or transactions with any parties conducted heretofore director, officer, employee, or stockholder of the Company, or any Affiliate or relative of the foregoing except upon terms that, in the opinion of the FF-ITP, are fair and reasonable and that are, in any event, at least as favorable as would result in a comparable arm's-length transaction with a Person not a director, officer, employee, shareholder, or Affiliate of the Company or any Affiliate or related party of the foregoing, or advance any monies to any such Persons, except for travel advances in the ordinary course of business;
(h) increase the amount of remuneration paid to officers under the employment agreements disclosed with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date Section 3.01(k) of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating (the "Employment Agreements");
(i) modify, amend, terminate or waive any material provision of the Employment Agreements;
(j) allow the aggregate par value of the Capital Stock subject to an Acquisition Proposal with or the Warrants from time to time to exceed the price payable upon exercise of the Warrants, as adjusted from time to time;
(k) fail to achieve $30,000,000 in net revenue and $1,500,000 in EBITDA for the benefit year ending one year after the Original Closing Date; $60,000,000 in net revenue and $3,500,000 in EBITDA for the year ending two years after the Original Closing Date; and $90,000,000 in net revenue and $5,500,000 in EBITDA for the year ending three years after the Original Closing Date;
(l) fail to comply, in all material respects, with all applicable statutes, regulations, and orders of PVFC the United States, domestic and foreign states, and municipalities, agencies, and instrumentalities of the foregoing applicable to promptly return the Company;
(m) fail to file all required tax returns, reports, and requests for refunds on a timely basis or destroy (which destruction shall be certified in writing by such Person to PVFC) pay on a timely basis all informationtaxes imposed on either it, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or upon any of its Representatives assets, income or franchises; provided, however, that neither the Company nor any Subsidiary shall be required to such Person pay or discharge any of such Person’s Representatives tax, levy, assessment, or governmental charge that is being contested in good faith by appropriate proceedings diligently pursued, and for which adequate reserves in accordance with generally accepted accounting principles, consistently applied, have been establis-hed;
(n) authorize or issue stock to ▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or any Affiliate or Related Party of the terms foregoing;
(o) fail to keep books and records of account in which full, true, and correct entries will be made of all dealings and transactions in relation to its business and affairs in accordance with generally accepted accounting principles applied on a consistent basis;
(p) create or authorize any class or series of capital stock ranking prior to or pari passu with the Series A Preferred Stock with respect of the payment of dividends or the distribution of assets upon a liquidation, or create or authorize any rights, options or warrants exercisable for, or securities convertible into or exchangeable for, shares of any confidentiality agreement with such Person and class or series of capital stock;
(q) except for Permitted Stock, authorize the issuance of the Company's equity securities at a price per share of less than their Fair Market Value; or
(r) obligate itself or otherwise agree to destroy all summariestake, analyses permit or extracts of or based upon such information in the possession of such Person or enter into any of such Person’s Representativesthe events described in subsections (a) through (q) above.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Preferred Stock and Warrant Purchase Agreement (It Partners Inc)
Certain Actions. Except as contemplated by this Agreement or the Exchange Agreement, without the prior written consent of Purchaser, which consent Purchaser shall not unreasonably withhold or delay, Seller shall not take any of the following actions with respect to the Company or cause the Company to take any of the following actions:
(a) From the date of this Agreement through the Effective Timeissue or grant any equity securities, except as options, convertible securities, warrants or calls or repurchase, redeem or otherwise permitted by this Section 6.11, PVFC will not, and will not authorize or permit acquire any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any such securities of the PVFC Subsidiaries Company or afford access make or propose to make any other change in the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.Company's capitalization;
(b) Notwithstanding anything merge or consolidate with any other Entity or acquire all or substantially all of the assets or equity interests or business of any entity or person;
(c) incur any indebtedness for borrowed money other than in this Agreement the ordinary course of business consistent with past practice;
(d) amend, exercise or fail to exercise or waive any of its or the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated Company's rights under the Exchange Act with regard Agreement or that certain Promissory Note in the principal amount of $300 million payable by the Company to an Acquisition Proposal provided that Seller (the Board of Directors of PVFC shall not withdraw or modify "ARCO Note") in a manner adverse to FNB way which impairs or, with the PVFC Recommendation except as set forth in subsection (iii) belowpassage of time, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be is reasonably likely to result impair, the rights or benefits which Purchaser has or would otherwise have under this Agreement, the Exchange Agreement or the ARCO Note, either in Purchaser's capacity as a breach party to this Agreement or by virtue of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in Purchaser's ownership commencing on the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing Closing Date of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligationShares; provided, however, that if the Board of Directors of PVFC shall have effected a Change nothing in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
subparagraph (d) PVFC agrees shall prohibit Seller from causing the Company to terminate the Exchange Agreement in the event that it willPurchaser terminates, and will cause the PVFC Representatives toor notifies Seller that Purchaser intends to terminate, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect pursuant to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFCSection 9.1(e) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.below;
(e) For purposes accept or permit the Company to make any distribution or dividend to Seller as its sole shareholder of any payments paid to the Company by Mobil under Section 16.02 of the Exchange Agreement;
(f) except as required by order of a court of competent jurisdiction or by applicable securities laws or stock exchange requirements, make any public announcement or issue any press release with respect to this Agreement:, the Exchange Agreement or the transactions contemplated under either such agreement, which materially differs from the form or content of a public announcement which is mutually agreed upon by Seller and Purchaser; or (g) commit to do any of the foregoing.
Appears in 1 contract
Certain Actions. (a) From the date of this Agreement through Execution Date until the Effective TimeClosing Date, except as otherwise permitted by expressly provided in this Section 6.11, PVFC will not, and will not authorize or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i)Agreement, or any inquiries as required by the Bankruptcy Court and the provisions of the Bankruptcy Code, Seller, except in the Ordinary Course of Business consistent with respect to past practice or as set forth on Section 5.3 of the making of any Acquisition ProposalDisclosure Schedule, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or shall not take any of the PVFC Subsidiaries or afford access to following actions without first obtaining the businesswritten consent of Buyer, propertieswhich shall not be unreasonably withheld, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way withdelayed, or knowingly assist, participate in, facilitate conditioned: (a) amend or encourage terminate any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
Assumed Contract; (b) Notwithstanding anything sell, assign, transfer, distribute, or otherwise transfer or dispose of any Acquired Assets or other plant, equipment, account receivable, or other assets or property, in this Agreement each case, other than sales of Inventory in the Ordinary Course of Business; (c) take, cause, or permit to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided occur any action or event that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach any representation or warranty of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement Seller being inaccurate as of the date hereof may not be rescinded)Closing Date; (d) make any changes in cash management practices, in which event the Board pricing policies, credit or allowance policies, monetary policies, or accounting policies; (e) make any payment to, or undertake any transaction with, any Affiliate, officer, director, owner, or manager of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal Seller other than the Merger payment of compensation or benefits; (f) adopt, amend, or terminate any Employee Benefit Plan or other employee plan; or (g) change the compensation or benefits, or terminate without cause or change the position, of any employee of Seller.
(b) Seller shall have terminated that certain Asset Purchase Agreement by and among Seller and Candy Cube Holdings, LLC pursuant to the Bidding Procedures Order prior to Closing.
(c) At or prior to Closing, there shall not be a written notice of an Event of Default issued by SFCC under the termination DIP Facility (as such terms are defined therein), and Seller shall be in compliance with the Budget dated October 4, 2019 and the variance limitations set forth in Section 6.18(b) of the DIP Facility. For the avoidance of doubt, the Budget filed with the Bankruptcy Court on September 6, 2019 shall not be the operative budget for any purpose under this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it willBetween the Effective Date and the Closing, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives Seller shall promptly after deliver to Buyer copies of all reports provided to the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for lender under the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s RepresentativesDIP Facility.
(e) Buyer shall have no liability for post-petition obligations, including without limitation any unpaid post-petition vendor claims or post-petition landlord claims under any Lease, which claims and payments shall be paid pursuant to the Budget. For purposes avoidance of this Agreement:doubt, all Cure Costs that arose pre-petition shall be an obligation of the Buyer and not Seller.
Appears in 1 contract
Certain Actions. Executive agrees that until the earlier of the second anniversary of the Termination Date or a Change of Control (a) From the date of this Agreement through the Effective Timeas defined below), except as otherwise permitted by this Section 6.11, PVFC will Executive shall not, and will not authorize on his own behalf or permit on behalf of any of its directorsother person, officerspartnership, agentsassociation, employeescorporation, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) toother entity, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way absent the prior written authorization of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw the Company, take any of the following actions:
a. make, engage in or modify in a manner adverse any way participate in any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”) but without regard to FNB the PVFC Recommendation except as exclusion set forth in subsection Rule 14a-1(1)(2)(iv) under the Securities Exchange Act of 1934, as amended (iiithe “Exchange Act”)) belowof proxies, consents or voting authorizations with respect to the election or removal of directors of the Company or any other matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, or become a “participant” (iias such term is used in the proxy rules of the SEC) to engage in any discussions such solicitation of proxies, consents or negotiations withvoting authorizations from the Company’s stockholders;
b. encourage, influence, induce or advise or assist any person with respect to the giving, revocation or withholding of any proxy, consent or other authorization to vote any shares of common stock or other voting securities of the Company (other than solicitation activity that is consistent with the recommendation of and provide expressly authorized by the Board) in connection with any information tomatter submitted to the Company’s stockholders for their consideration and vote;
c. form, join, encourage, influence, advise, act in concert with or in any way participate in any “group” (as defined pursuant to Section 13(d) of the Exchange Act) with respect to any voting securities of the Company;
d. propose, offer or in any way participate (or assist or facilitate any other person to do so) in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, reorganization, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or the Company’s securities or a material amount of the assets of the Company and its subsidiaries, taken as a whole (an “Extraordinary Transaction”), or frustrate or seek to frustrate the pendency or consummation of any Extraordinary Transaction proposed, approved or recommended by the Board of Directors, or make any public statement with respect to an Extraordinary Transaction, or make, either alone or in concert with others, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only proposal to the extent that (x) PVFC’s Company or the Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding require or result in a public announcement regarding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not matters described in this Section 17;
e. make or be rescindedthe proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise); or
f. publicly disclose any intention, in which event the Board plan, commitment or arrangement to do any of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
(e) For purposes of this Agreement:
Appears in 1 contract
Certain Actions. Without the prior written consent of the Holders, which consent may be withheld in the sole discretion of the Holders, the Company will not, and the Company will not permit any of its Subsidiaries to:
(a) From permit to occur any amendment, alteration or modification of its Articles of Incorporation, Bylaws or other charter or organizational documents, as constituted on the date of this Agreement through Agreement, the Effective Timeeffect of which, except as otherwise permitted by in the reasonable credit judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of Company under this Section 6.11Agreement, PVFC will notthe Warrants, and will not authorize or permit the Shareholder Agreement;
(b) declare or make any dividends or distributions of its directorscash, officersstock, agentsproperty, employeesor assets or redeem, investment bankersretire, attorneyspurchase, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) tootherwise acquire, directly or indirectly, (i) initiate, solicit, encourage any of its Capital Stock or take Capital Stock or securities of any action to facilitate, including by way Affiliate of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i)the Company, or any inquiries with respect to securities convertible or the making exchangeable into Capital Stock or Capital Stock or securities of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any Affiliate of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligationCompany; provided, however, that if (i) any Subsidiary of Precise may declare and pay dividends or make other distributions to Precise, (ii) any Subsidiary of Precise may declare and pay dividends or make other distributions to any other wholly-owned Subsidiary of Precise, (iii) Precise may declare and pay dividends to the Board of Directors of PVFC shall have effected a Change Company to enable the Company to pay franchise taxes and other ordinary course operating expenses in PVFC Recommendationan amount not to exceed $25,000 in any twelve-month period, then (iv) Precise may fund purchases by the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as Company or Sunderland of the date hereof may not be rescinded), in which event common stock of the Board Company or Sunderland held by an employee of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to Company upon the termination of this Agreement.
such individual's employment with the Company (cso long as (A) PVFC will promptlythe Company shall give prior written notice thereof to the Purchaser, and in (B) the aggregate amount of all such repurchases made after the Closing Date does not exceed $3,000,000, (C) the aggregate amount of all such repurchases made during any event within 24 hours, notify FNB in writing fiscal year of the receipt Company does not exceed $1,000,000 and (D) no default or event of any Acquisition Proposal default shall have occurred and be continuing under this Agreement or the Shareholder Agreement, or would occur after giving effect thereto), (v) Precise may make distributions to the Company to permit the Company to (A) purchase the Warrants upon exercise of the Put Option by the Holders of the Warrants and (B) pay the principal balance of, or any information related theretoscheduled interest payments due on, which notification shall describe any promissory notes issued by the Acquisition Proposal and identify Company to the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as Holders of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives Warrants in accordance with the terms of the Shareholder Agreement, (vi) Precise or any confidentiality agreement with such Person Subsidiary of Precise may make and pay regularly scheduled dividends on, and may make any scheduled redemption or repurchase of, any Disqualified Stock, subject to destroy all summaries, analyses or extracts of or based upon such information the restrictions set forth in the possession Indenture and in Section 4.04 of such Person the Shareholder Agreement, (vii) the Company, Precise and any Subsidiary of Precise may make and pay any distribution permitted under Section 4.04(g) hereof, and (viii) Precise or any Subsidiary of Precise may redeem, repurchase, retire or otherwise acquire any Disqualified Stock in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other Disqualified Stock, subject to the restrictions set forth in Section 4.04(d)(iii) hereof;
(c) effect any sale, lease, assignment, transfer, or other conveyance of any portion of the assets or operations or the revenue or income generating capacity of the Company or any Subsidiary (other than sales, leases, assignments, transfers and other conveyances which are permitted pursuant to the terms of the Indenture) or to take any such Person’s Representatives.action that has the effect of the foregoing;
(d) issue or sell, or otherwise dispose of any Capital Stock; provided, however, that (i) the Company may issue or sell Permitted Stock, (ii) the Company may issue or sell any Capital Stock required or permitted to be issued to the Holders pursuant to this Agreement, the Shareholder Agreement or the Pecks Securities Purchase Agreement, (iii) Precise or any Subsidiary of Precise may issue or sell any Disqualified Stock (other than Common Stock) if such issuance or sale is permitted pursuant to the terms of the Indenture, including, without limitation, if applicable, the Fixed Charge Coverage Ratio test set forth in Section 4.12 of the Indenture (except that, for purposes of determining whether any such sale or issuance is permitted pursuant to the terms of this Agreement (as opposed to the Indenture), the Fixed Charge Coverage Ratio test shall be 3.0 to 1.0 rather than 2.0 to 1.0), and (iv) the Company may effect an Initial Public Offering, subject to the terms of this Agreement and the Shareholder Agreement;
(e) For dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary, or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock; provided, however, that (i) any Inactive Subsidiary may be dissolved or liquidated, (ii) any wholly-owned Subsidiary of Precise may be merged with and into (A) Precise, provided that Precise is the surviving corporation or (B) any other wholly-owned Subsidiary of Precise, (iii) Precise may effect any consolidation or merger permitted pursuant to the terms of the Indenture if, in addition to the requirements set forth in the Indenture, (A) all of the Capital Stock (other than Disqualified Stock) of the entity or Person formed by or surviving any such consolidation or merger (if other than Precise) will, immediately after giving effect to such transaction, be directly owned and controlled by the Company and (B) except in the case of a merger of Precise with or into a wholly-owned Subsidiary of Precise, Precise or the entity or Person formed by or surviving any such consolidation or merger (if other than Precise) will, if required under the terms of the Indenture, at the time of such transaction and after giving pro-forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.01 of the Indenture (except that, for purposes of determining whether any such consolidation or merger is permitted pursuant to the terms of this Agreement (as opposed to the Indenture), the Fixed Charge Coverage Ratio test shall be 3.0 to 1.0 rather than 2.0 to 1.0), and (iv) any Subsidiary of Precise may effect any consolidation or merger permitted pursuant to the terms of the Indenture if, in addition to the requirements set forth in the Indenture, (A) all of the Capital Stock (other than Disqualified Stock) of the entity or Person formed by or surviving any such consolidation or merger (if other than such Subsidiary) will, immediately after giving effect to such transaction, be directly or indirectly owned and controlled by Precise and (B) except in the case of a merger of a Subsidiary of Precise with or into another wholly-owned Subsidiary of Precise, such Subsidiary or the entity or Person formed by or surviving any such consolidation or merger (if other than such Subsidiary) will, if required under the terms of the Indenture, at the time of such transaction and after giving pro-forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.12 of the Indenture (except that, for purposes of determining whether any such consolidation or merger is permitted pursuant to the terms of this Agreement (as opposed to the Indenture), the Fixed Charge Coverage Ratio test shall be 3.0 to 1.0 rather than 2.0 to 1.0);
(f) enter into any business that the Company or Precise is not conducting on the date of this Agreement:;
(g) sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any director, officer, or shareholder of the Company or the Shareholder, or any Affiliate or relative of the foregoing (each of the foregoing, an "Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person and (ii) the Company delivers to the Holders (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $1.0 million, a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the Board of Directors and (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing; provided, however, that (r) the application of the proceeds of the Public Notes offering and the transactions entered into in connection therewith in the manner contemplated in "Use of Proceeds" section set forth in the Indenture, (s) payments under the Management Agreement in an amount not to exceed $300,000 in any twelve-month period, (t) the payment of $500,000 by the Company or any of its Subsidiaries to Mentmore and/or its Affiliates made for financial advisory services in respect of the Public Notes offering, (u) payments under the tax sharing agreement by and among the Company, Precise, any Subsidiaries of Precise and Sunderland, to the extent that, in the case of Precise and its Subsidiaries, such payments do not otherwise exceed the tax liability that Precise and its Subsidiaries would have had were it not part of a consolidated group, (v) any employment agreement, compensation agreement or employee benefit arrangement entered into by the Company or any of its Subsidiaries in the ordinary course of business, (w) transactions between or among the Company, Precise and/or their Subsidiaries, (x) the payment of reasonable out-of-pocket expenses by Precise to Mentmore pursuant to the Management Agreement, (y) any capital contributions, advances, loans or other investments made by Precise or any of its wholly-owned Subsidiaries to any wholly-owned Subsidiary of Precise, and (z) any dividend or distribution permitted under Section 4.04(b) hereof, in each case, shall not be deemed Affiliate Transactions;
(h) increase the aggregate amount of management, consulting or similar fees paid or accrued by the Company or its Subsidiaries during any fiscal year to or for the direct or indirect benefit of any of its officers, directors, security holders or Affiliates, or pay any financial advisory, investment banking or similar fees to or for the direct or indirect benefit of any of its officers, directors, security holders or Affiliates;
(i) acquire any substantial business operation or assets (through a stock or asset purchase or otherwise), or acquire any debt or equity interest in any Person, or establish or acquire a Subsidiary (other than any Subsidiary existing on the date hereof), or make any additional capital contribution or purchase any additional equity in any Subsidiary; provided, however, that Precise and its Subsidiaries may effect any of the foregoing transactions if such transaction is permitted pursuant to the terms of the Indenture, including, without limitation, if applicable, the Fixed Charge Coverage Ratio test set forth in Section 4.12 of the Indenture (except that, for purposes of determining whether any such sale or issuance is permitted pursuant to the terms of this Agreement (as opposed to the Indenture), the Fixed Charge Coverage Ratio test shall be 3.0 to 1.0 rather than 2.0 to 1.0);
(j) allow the aggregate par value of the Capital Stock subject to the Warrants from time to time to exceed the price payable on exercise of the Warrants, as adjusted from time to time;
(k) amend, modify or waive any of the terms or provisions of the Senior Loan Documents if such amendment, modification or waiver (i) is prohibited by the terms of the Indenture or (ii) would extend the final maturity date of the Senior Loans beyond June 30, 2002; or
(l) obligate itself or otherwise agree to take, permit or enter into any of the events described in subsections (a) through (k) above. Notwithstanding anything to the contrary contained in this Agreement, this Section 4.04 shall terminate and be of no further force and effect after the occurrence of an Initial Public Offering and after such time as all shares of Capital Stock issuable in respect of such Purchaser's Warrant are released from the terms and provisions of any holdback agreement contemplated by Section 7.07 of the Shareholder Agreement and are registered or otherwise freely transferable."
Appears in 1 contract
Sources: Warrant Purchase Agreement (Massic Tool Mold & Die Inc)
Certain Actions. (a) From During the date period commencing on the Closing Date and ending on the fifth anniversary of this Agreement through the Effective TimeClosing Date, except as otherwise permitted by this and subject to Section 6.115(b), PVFC the Designated Shareholders will not, and will cause each of their Designated Permitted Transferees not authorize or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, without the approval of a majority of the Disinterested Directors:
(i) initiate, publicly solicit, encourage initiate or take any action to facilitate, including by way of furnishing informationencourage, any Acquisition Proposal, as defined in Section 6.11(e)(i)offer or proposal for, or any inquiries indication of interest in, a merger or other business combination involving the Company or any subsidiary of the Company or the acquisition of securities representing at least 30% of the voting power of the Company, or a substantial portion of the assets of the Company or any subsidiary of the Company (an "ACQUISITION PROPOSAL");
(ii) except as otherwise provided in Section 1, "solicit", or become a "participant" in any "solicitation" of, any "proxy" (as such terms are defined in Regulation 14A under the Exchange Act) from any holder of Voting Securities in connection with any vote on any matter, or agree or announce their intention to vote with any Person undertaking a "solicitation";
(iii) form, join or in any way participate in a group with respect to any Voting Securities; PROVIDED that this clause 5(a)(iii) shall not prohibit any such arrangement solely among the WCAS Purchasers; or
(iv) advise or the making of assist any Acquisition Proposal, (ii) enter into or participate other Person in any discussions or negotiations with, furnish any information relating to PVFC or connection with any of the PVFC Subsidiaries foregoing or afford access to the businesspublicly disclose any intention, properties, assets, books plan or records of PVFC or arrangement inconsistent with any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposalforegoing.
(b) Notwithstanding anything In the event that a Hostile Approach (as defined below) is made by any Person (a "HOSTILE PERSON"), the restrictions set forth in this Agreement to the contrary, PVFC and its Board of Directors Section 5(a) shall be permitted suspended upon the earliest of (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that fifth business day following such Hostile Approach, unless the Board shall have publicly announced their opposition to such Hostile Approach, including, where applicable, by recommending that stockholders of Directors of PVFC shall the Company vote against, and do not withdraw furnish any proxy, consent or modify authorization requested by such Hostile Person in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations connection with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
(e) For purposes of this Agreement:such
Appears in 1 contract
Certain Actions. Except (x) as expressly contemplated by this Agreement, (y) as approved by Co-Investor Member (which approval shall not be unreasonably withheld, conditioned or delayed) or (z) as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company, at all times during the Interim Period, the Company shall, and Intel Member and its Affiliates shall cause the Company to, (a) From use its respective commercially reasonable efforts to maintain its existence in good standing pursuant to applicable Law; (b) subject to the date restrictions and exceptions elsewhere in this Agreement, conduct its business and operations in the ordinary course of this Agreement through business; and (c) use its respective commercially reasonable efforts, consistent with its operations in the Effective Timeordinary course of business, except as otherwise permitted by this Section 6.11, PVFC will not, and will not authorize or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, to (i) initiatepreserve intact its material assets, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, properties (as defined in Section 6.11(e)(iapplicable), Contracts or any inquiries with respect to or the making of any Acquisition Proposalother legally binding understandings, licenses and business organizations, (ii) enter into or participate in any discussions or negotiations withkeep available the services of its current officers and key employees and (iii) preserve its current relationships and goodwill with customers, furnish any information relating to PVFC suppliers, partners, platform providers, manufacturers, distributors, lessors, licensors, licensees, creditors, contractors and such other Persons with which the Company, Intel Member or any of its Affiliates has business relations. Without limiting the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any generality of the PVFC Subsidiariesforegoing, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Lawas expressly contemplated by this Agreement, (y) prior to providing any information as approved by Co-Investor Member (which approval shall not be unreasonably withheld, conditioned or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and delayed) or (z) as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company, at least 48 hours prior all times during the Interim Period, the Company shall not:
a. with respect to providing the Company, issue, sell, assign, transfer, pledge, or grant new Units or redeem or repurchase any information outstanding Units in the Company or data any securities or rights convertible into, exchange or exercisable for or evidencing the right to subscribe for any third party Units or entering into discussions rights, warrants or negotiations with options to purchase any third partyUnits, PVFC promptly notifies FNB other than pursuant to this Agreement;
b. make any material change in writing its financial accounting policies, except as required by Law, GAAP or any applicable accounting standards or the SEC;
c. (i) declare, set aside for payment or pay any dividend on, or make any other distribution in respect of, any Units or other securities of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdrawCompany, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto other than to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger paid in full prior to the termination of this Agreement.
Closing or (cii) PVFC will promptlyadjust, and in any event within 24 hourssplit, notify FNB in writing of the receipt of any Acquisition Proposal combine, subdivide or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or reclassify any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
(e) For purposes of this Agreement:Units;
Appears in 1 contract
Certain Actions. GLN shall:
(a) From not take any action that would interfere with or be inconsistent with the date completion of the transactions contemplated hereunder or would render, or that reasonably may be expected to render, any representation or warranty made by GLN in this Agreement through untrue in any material respect at any time prior to the Effective TimeTime if then made;
(b) use its commercially reasonable efforts to complete the Concurrent Financing;
(c) other than as disclosed in the GLN Disclosure Letter, not (i) issue or agree to issue any shares, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares other than pursuant to the exercise of GLN Warrants; or (ii) redeem, purchase or otherwise acquire any of its outstanding shares or other securities; (iii) split, combine or reclassify any of its shares; (iv) adopt a plan of liquidation or resolutions providing for its liquidation, dissolution, merger, consolidation or reorganization; (v) merge, amalgamate, or consolidate into or with any other person or company or enter into any other corporate reorganization, or sell all or any substantial part of its assets to any person or company, or perform any act or enter into any transaction or negotiation which can reasonably be expected to interfere or be inconsistent with the consummation of the Arrangement; or (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing, except as otherwise permitted by this Section 6.11, PVFC will not, and will not authorize Agreement or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action agreed to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.Exito;
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect not grant to any Acquisition Proposal. PVFC officer or its Representatives shall promptly after director an increase in compensation in any form, grant any general salary increase other than in accordance with the date requirements of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating any existing agreements, grant to an Acquisition Proposal with any other employee any increase in compensation in any form other than routine increases in the ordinary course of business, or make any loan to any officer or director;
(e) not, without the prior written consent of Exito, adopt or amend or make any contribution to any bonus, profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of PVFC employees, except as is necessary to promptly return comply with Applicable Laws or destroy (which destruction shall be certified in writing by such Person with respect to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms existing provisions of any confidentiality agreement with such Person plans, programs, arrangements or agreements;
(f) not, other than pursuant to a binding commitment entered into prior to the date hereof and disclosed to destroy all summariesExito: (i) sell, analyses or extracts pledge, dispose of or based upon such information encumber any assets, except for production in the possession ordinary course of such Person business; (ii) expend or any of such Person’s Representatives.
(e) For purposes of this Agreement:commit to expend more than $50,000 individually or $500,000 in the aggregate with respect to capital expenses;
Appears in 1 contract
Sources: Arrangement Agreement
Certain Actions. Without the prior written consent of the Holders, which consent may be withheld in the sole discretion of the Holders:
(a) From the Company shall not permit to occur any (i) amendment, alteration, or modification of the Bylaws of the Company, as constituted on the date of this Agreement, the effect of which, in the sole judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of the Company under this Agreement, the Warrants, the Stockholders’ Agreement or the Registration Rights Agreement or (ii) amendment, alteration, or modification of the Certificate of Incorporation, the Certificate of Designations, other charter or organizational documents of the Company, as constituted on the date of this Agreement or authorize or designate (through board of directors designation or otherwise) any class or series of any Capital Stock which rank on parity with or senior to the Effective TimeSeries D Convertible Preferred Stock upon payment of dividends, liquidation or other distributions except as otherwise permitted by to the extent necessary to comply with Sections 4.04(k) and 4.10 of this Section 6.11, PVFC will Agreement;
(b) the Company shall not, and will shall not authorize permit any Subsidiary to, declare or permit make any dividends or distributions of its cash, stock, property, or assets (other than general dividends and distributions to its shareholders in instances in which the Dilution Fee is applicable and has been indefeasibly paid to the Holders (e.g., the Holder is not obligated to disgorge the payment or turn over the payment to the senior lender of the Company or any of its directorsSubsidiaries) and stock dividends to which the adjustments provided for in Section 2.12 of this Agreement have been made) or redeem, officersretire, agentspurchase, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) tootherwise acquire, directly or indirectly, any of the Capital Stock or capital stock or securities of any Affiliate of the Company, or any securities convertible or exchangeable into Capital Stock or capital stock or securities of any Affiliate of the Company, except that (i) initiate, solicit, encourage or take any action Subsidiary shall be permitted to facilitate, including by way do any of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), the foregoing for the benefit of the Company or any inquiries with respect to or the making of any Acquisition Proposal, other Subsidiary and (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors Company shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that repurchase shares of Capital Stock from employees upon termination of employment; provided, that, such repurchases are approved by the Board of Directors of PVFC and; provided further, that, such repurchases shall not withdraw exceed $500,000 cumulatively in the aggregate during the term of this Agreement;
(c) the Company shall not issue or modify sell, or otherwise dispose of or permit any Subsidiary to issue, sell or dispose of, any capital stock or securities of any Subsidiary, or dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock (unless the adjustments provided for by Section 2.12 of this Agreement have been made); except that the Company shall be permitted to issue and sell Permitted Stock;
(d) the Company shall not, except for the Registration Rights Agreement, become a party to, or otherwise be bound by, any agreement obligating it to register any of its Capital Stock;
(e) the Company shall not, and shall not permit any Subsidiary to, enter into any business which is not substantially related to that which the Company or any Subsidiary, as the case may be, is conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise);
(f) the Company shall not, and shall not permit any Subsidiary to, except for Permitted Stock, the Lease, the Stockholders’ Agreement, the Registration Rights Agreement and the Management Agreement and as listed on Schedule 7.6 of the Note Agreement as in effect on the date hereof, enter into any transaction or transactions with any director, officer, employee, or shareholder of the Company or Subsidiary, as the case may be, or any Affiliate or relative of the foregoing, except upon terms that are disclosed in advance and approved by a majority of the outside directors of the Company, and that are, in any event, at least as favorable as would result in a manner adverse comparable arm’s-length transaction with a Person not a director, officer, employee, shareholder, or Affiliate of the Company or Subsidiary, as the case may be, or any Affiliate or related party of the foregoing, or advance any monies to FNB any such Persons, except for travel advances in the PVFC Recommendation ordinary course of business (provided that nothing herein shall prevent the Company from providing insurance and similar benefits to all its directors) and except as set forth for transactions between the Company and any of its Subsidiaries or between any of the Company’s Subsidiaries (provided that each Subsidiary in subsection such transaction is a guarantor of the obligations of the Company to the Holders and any sale of the capital stock or substantially all of the assets of such Subsidiary would constitute an Event of Default (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(iithe Note Agreement), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if neither the Company nor any of its Subsidiaries shall be permitted to make any payment under the Management Agreement upon the occurrence and during the continuation of either (i) an Event of Default under Section 8.1(a) of the Note Agreement or Section 8.1(g) of the Note Agreement (other than a default by the Company or any Subsidiary of the obligation to purchase all or a portion of the Put Shares in a circumstance which does not constitute a Put Event Exercise Payment Default) or (ii) a Put Event Exercise Payment Default;
(g) the Company shall not, and shall not permit any Subsidiary to, as the case may be, permit the aggregate amount of salary and other direct and indirect remuneration (including, but not limited to, employee benefits and professional, consulting and management fees and expenses (but excluding out-of-pocket expenses incurred in attending meetings of the Company’s Board of Directors) paid by the Company or any Subsidiary, as the case may be, during any fiscal year to Sterling Investment Partners Advisors, LLC, any Affiliate of Sterling Investment Partners Advisors, LLC, or any successor or transferee of any such Person(s), or any member of such Person’s immediate family, directly or indirectly, without the prior written consent of a majority in interest of the Holders) to exceed the amounts provided for in the Management Agreement or Section 7.12 of the Stockholders’ Agreement (provided that nothing herein shall prevent the Company from providing insurance and similar benefits to all its directors and, in connection with and following the Initial Public Offering, granting options to all non-employee directors, having an exercise price equal to Fair Market Value on the date of the grant); provided, however, that neither the Company nor any of its Subsidiaries shall be permitted to make any payment under the Management Agreement upon the occurrence and during the continuation of either (i) an Event of Default under Section 8.1(a) of the Note Agreement (other than a default by the Company or any Subsidiary of the obligation to purchase all or a portion of the Put Shares in a circumstance which does not constitute a Put Event Exercise Payment Default) or Section 8.1(g) of the Note Agreement or (ii) a Put Event Exercise Payment Default;
(h) the Company shall not, and shall not permit any Subsidiary to, acquire any debt or equity interest in any Person or establish or acquire a Subsidiary or make any additional capital contribution or any loans to or purchase any additional equity in any Subsidiary or make any advances or loans to any Subsidiary (other than a Subsidiary which is a guarantor of the obligations of the Company to the Holders and with respect to which any sale of the capital stock or substantially all of the assets of such Subsidiary would constitute an Event of Default (as defined in the Note Agreement)) or acquire all or substantially all of the assets of any Person except those which do not involve the investment, incurrence of debt or liability or contribution of more than (i) $500,000 per year in the aggregate and (ii) $1,000,000, from and after the Closing Date in the aggregate, or transfer any technology or assets to any Subsidiary (other than a Subsidiary which is a guarantor of the obligations of the Company to the Holders and with respect to which any sale of the capital stock or substantially all of the assets of such Subsidiary would constitute an Event of Default (as defined in the Note Agreement)) unless the Holders have been given prior written notice thereof and such transfer has been approved by a majority of the outside directors of the Company;
(i) the Company shall not, and shall not permit any Subsidiary to, (I) modify, amend, terminate or waive any provision of any Employment Agreement (except as permitted by the Note Purchase Agreement), or (II) allow or permit ▇▇▇▇▇▇ ▇▇▇▇ (or any successor thereto consented to by the Holders) to cease to perform the functions of chief executive officer (or president) of the Company unless the Company shall have within a reasonable period not to exceed one hundred eighty (180) days obtained a successor chief executive officer (or president) of at least comparable background, experience and ability who is acceptable to and consented to by a group of Holders holding not less than two-thirds (2/3) of the Warrant Shares, or (III) allow or permit ▇▇▇▇ ▇▇▇▇▇ (or any successor thereto consented to by the Holders) to cease to perform the functions of chief financial officer of the Company unless the Company shall have within a reasonable period not to exceed one hundred eighty (180) days obtained a successor chief financial officer of at least comparable background, experience and ability who is acceptable to and consented to by a group of Holders holding not less than two-thirds (2/3) of the Warrant Shares;
(j) the Company shall not, and shall not permit any Subsidiary to, enter into, or otherwise become bound by, any agreement, arrangement or understanding, other than this Agreement or the Stockholders’ Agreement and the documents contemplated hereby and thereby, modifying, restricting or in any way affecting the rights of any securityholder to vote the securities of the Company;
(k) the Company shall not permit the aggregate par value of the Capital Stock subject to the Warrants from time to time to exceed the price payable upon the exercise of the Warrants, as adjusted from time to time;
(l) the Company shall not take any action, or permit any Subsidiary to take any action, which could reasonably be expected to cause a “Regulatory Violation” or “Regulatory Problem,” as such terms are defined in the Stockholders’ Agreement;
(m) the Company shall not, and shall not permit any Subsidiary to, enter into any employee stock option or benefit plan with respect to shares of Capital Stock of the Company unless (i) such plan shall be approved by a majority of the disinterested directors of the Board of Directors of PVFC the Company, (ii) the options shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or contain an appropriate amendment or supplement thereto exercise price equal to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of fair market value thereof at the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after grant, and (iii) the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction options shall be certified in writing by such Person exercisable into not more than 592,189 shares of the Common Stock (subject to PVFCadjustments for stock splits and reverse stock splits and similar events as to which corresponding adjustments are made to the number of shares of Capital Stock issuable upon exercise of the Warrants); and
(n) all informationthe Company shall not obligate itself or otherwise agree to take, documents and materials relating to an Acquisition Proposal permit or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or enter into any of its Representatives to such Person or any of such Person’s Representatives the events described in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representativessubsections (a) through (m) above.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Warrant Purchase Agreement (Kenan Advantage Group Inc)
Certain Actions. Company not to take any of the following actions:
(a1) From Dispose of any assets other than in the date ordinary course of this Agreement through business;
(2) Mortgage, pledge or subject to liens or other encumbrances any assets or properties of Company;
(3) Purchase or commit to purchase any capital asset for a price exceeding $100,000.00;
(4) Except for planned or normal increases in the Effective Timeordinary course of business with respect to non-officer employees, except as otherwise permitted by this Section 6.11increase (or announce any increase of) any salaries, PVFC will notwages or employee benefits or hire, and will not authorize commit to hire or permit terminate any employee;
(5) Amend its charter or bylaws;
(6) Issue, sell or repurchase any of its directorscapital stock or make any change in its issued and outstanding capital stock or issue any warrant, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates option or representatives (collectively, “PVFC Representatives”) to, directly other right to purchase shares of its capital stock or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i)security convertible into its capital stock, or redeem, purchase or otherwise acquire any inquiries shares of its capital stock, or declare any dividends or make any other distribution with respect to its stock;
(7) Incur, assume or guarantee any obligation or liability for borrowed money, or exchange, refund or renew any outstanding indebtedness in such a manner as to reduce the making principal amount of such indebtedness and increase the interest rate or balance outstanding;
(8) Cancel any Acquisition Proposaldebts owed to Company;
(9) Amend or terminate any material agreement, including any employee benefit plan or any insurance policy, in force on the date hereof;
(ii10) enter into Solicit or entertain any offer for, or sell or agree to sell, or participate in any discussions or negotiations withbusiness combination with respect to, furnish any information relating to PVFC assets of Company (except Inventories sold in the ordinary course of business consistent with past practices) or any of the PVFC Subsidiaries Shares;
(11) Make any changes in its accounting methods, principles or afford access to the businesspractices, properties, assets, books except as may be required by GAAP;
(12) Enter into any contract or records of PVFC or any agreement of the PVFC Subsidiaries, to otherwise cooperate type described in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.SECTION 7.P.; or
(b13) Notwithstanding anything Do any act, omit to do any act or permit any act within Seller's or Company's control which will cause a breach of any representation, warranty, covenant or agreement contained in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage any obligations contained in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreementcontract.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
(e) For purposes of this Agreement:
Appears in 1 contract
Certain Actions. (a) From Except as contemplated by this Agreement, PARENT shall not have, between the date of this Agreement through Date and the Effective Time, directly or indirectly, done or have proposed or agreed to do any of the following without prior consultation with TARGET and receipt of TARGET's prior written consent, which consent shall not be unreasonably withheld:
(a) (i) amend or otherwise change its Certificate of Incorporation or Bylaws (other than amendments which are not material to TARGET); (ii) issue, sell, pledge, dispose of, or encumber, or, authorize the issuance, sale, pledge, disposition, or encumbrance of any shares of its capital stock of any class or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest, of it, other than the issuance of PARENT capital stock upon (x) exercise of (and in accordance with the terms of) any currently outstanding options or currently outstanding warrants for capital stock of PARENT or (y) conversion or exchange of (and in accordance with the terms of) any PARENT capital stock outstanding as of the Agreement Date; (iii) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; or (iv) declare, set aside, make or pay any dividend or other distribution, whether payable in cash, stock, property or otherwise, with respect to any of its capital stock; acquire (including, without limitation, for cash or shares of stock, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets of any other Person in excess of $25,000;
(b) (i) create, incur or assume any indebtedness for borrowed money, whether or not in the ordinary course of business, or issue any debt securities in excess of $25,000; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person; (iii) make any loans or advances to any other Person other than to employees in the ordinary course of business consistent with past practice; or (iv) make or commit to make any capital expenditures in excess of $25,000, other than those proposed to be made in any financial budgets
(c) not in the ordinary course of business: (i) issue any debt securities in excess of $25,000; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person; (iii) make any loans or advances to any other Person other than to employees in the ordinary course of business consistent with past practice; or (iv) make or commit to make any capital expenditures in excess of $25,000, other than those proposed to be made in any financial budgets delivered to TARGET prior to the Agreement Date;
(i) sell, pledge, dispose of or encumber, or authorize the sale, pledge, disposition or encumbrance of any of its properties or assets, tangible or intangible, except in each case in the ordinary course of business; (ii) enter into any new Contract other than in the ordinary course of business, consistent with past practice; or (iii) amend, terminate or cancel any material contract or fail to perform in any material respect any of its obligations thereunder;
(i) change any accounting policies or procedures, change any annual accounting period or make any change in any accounting methods or systems of internal accounting controls, except as otherwise permitted by may be appropriate to conform to changes in GAAP; (ii) revalue any of its assets, including writing down the value of any assets or writing off any notes or accounts receivable; (iii) make or change any Tax election, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment, surrender any right to claim refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other action or omit to take any action, if any such action or omission would have the effect of increasing the Tax liability of TARGET or PARENT;
(f) pay, discharge or satisfy any Liens, claims, debts, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of due and payable liabilities reflected or reserved against in the PARENT Financial Statements, as appropriate, or liabilities incurred after the date of the Most Recent Balance Sheet in the ordinary course of business and consistent with past practice;
(g) increase or decrease prices charged to its customers, other than in the ordinary course of business consistent with past practice, or fail to use all commercially reasonable efforts to enforce any Contract or other agreement with any customer or supplier, collect its accounts receivable, or pay its accounts payable, in each case in the ordinary course of business consistent with past practice;
(h) except as contemplated in other provisions of this Section 6.11Agreement, PVFC will not, and will not authorize enter into any contract or permit transaction with or for the benefit of any of its directors, officers, agentsstockholders, employeesAffiliates or Associates or any entity in which any such director, investment bankersofficer, attorneysstockholder, accountantsAffiliate or Associate, advisorsor their respective Affiliates or Associates, agentshas a direct or indirect interest, affiliates whether or representatives (collectivelynot in the ordinary course of business; or agree, “PVFC Representatives”) toin writing or otherwise, directly to take or indirectly, authorize any of the foregoing actions or any action which would make any representation or warranty in Article IV hereof untrue or incorrect in any respect; or
(i) (i) solicit, initiate, solicit, encourage the initiation or take any action to facilitate, including submission by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making others of any Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations with, respond to solicitations relating to, furnish to any Person any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way withwith respect to, or knowingly assist, participate in, take any other action to encourage or facilitate any inquiries or encourage the making of any effort by any third party proposal that is seeking to makeconstitutes, or has mademay reasonably be expected to lead to, an any Acquisition Proposal Proposal; or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contractContract, agreement or commitment contemplating (whether or otherwise relating to an Acquisition Proposal.
(bnot binding) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
(e) For purposes of this Agreement:
Appears in 1 contract
Certain Actions. (a) From the date By way of this Agreement through the Effective Timeamplification and not limitation, except as otherwise permitted by expressly provided for in this Agreement (including, for the avoidance of doubt, Section 6.113.10 above), PVFC will notthe Seller shall not (and the Majority Shareholders shall cause the Seller and the Affiliated Trucking Companies not to), between the date hereof and will not authorize or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) tothe Closing, directly or indirectly, do any of the following without the prior written consent of the Purchaser: (i) initiate(A) merge or consolidate with or into another entity; (B) except in the ordinary course of the Business and in a manner consistent with past practice, solicitsell, encourage pledge, dispose of, or take encumber or authorize or propose the sale, pledge, disposition or encumbrance of any action to facilitateassets leased, including used or held for use by way the Business; (C) enter into any contract or agreement with an aggregate value in excess of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(iFifty Thousand and 00/100 Dollars ($50,000.00), except in the ordinary course of the Business and in a manner consistent with past practice; (D) authorize or make any inquiries with respect to capital expenditures in the aggregate in excess of Fifty Thousand and 00/100 Dollars ($50,000.00); or the making of any Acquisition Proposal, (iiE) enter into or participate in amend any discussions contract, agreement, commitment or negotiations with, furnish any information relating arrangement with respect to PVFC or any of the PVFC Subsidiaries matters set forth in this Section 3.13(b)(i); (ii) take any action other than in the ordinary course of the Business and in a manner consistent with past practice (none of which actions shall be unreasonable) with respect to increasing compensation (including bonuses) of any employee or afford access with respect to the businessgrant of any severance or termination pay or with respect to any increase of benefits payable under its severance or termination pay policies in effect in the last twelve (12) months; (iii) make any payments except in the ordinary course of the Business and in amounts and in a manner consistent with past practice (none of which payments shall be unreasonable under the circumstances), propertiesunder any Employee Benefit Plan or otherwise to any employee of the Seller or an Affiliated Trucking Company or any other individual, assetsenter into any Employee Benefit Plan, books any employment or records of PVFC consulting agreement, grant or establish any new awards under any such existing Employee Benefit Plan or agreement, or adopt or otherwise amend any of the PVFC Subsidiaries, to otherwise cooperate foregoing; (iv) take any action except in any way withthe ordinary course of the Business and in a manner consistent with past practice with respect to, or knowingly assist, participate make any change in, facilitate its methods of management, purchasing, distribution, marketing, accounting or encourage operating (or practices relating to payment of trade accounts or to other payments or collection of accounts receivable); (v) do any effort by act or omit to do any third party act that is seeking would reasonably be expected to makecause a breach of any contract, commitment or has madeobligation of the Business, the Seller or an Acquisition Proposal Affiliated Trucking Company; (vi) dissolve and/or liquidate the Seller; (vii) make or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend guarantee any loan or enter into any letter of intent transaction with or similar document distribute any assets or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
property (b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (iother than Excluded Assets) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives officers, directors, employees, Shareholders or Affiliates (except for base salary paid to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information employees in the possession ordinary course of such Person the Business); or (viii) pay or discharge any Excluded Liabilities using any assets of such Person’s Representativesthe Seller or an Affiliated Trucking Company, other than cash, including the Purchased Assets.
(e) For purposes of this Agreement:
Appears in 1 contract
Certain Actions. (a) From Until the date earlier of the Effective Time or the termination of this Agreement through in accordance with Section 7.2, Naturo shall not:
(i) take any action, or refrain from taking any action or permit any action to be taken or not taken (subject to a commercially reasonable efforts qualification), inconsistent with the provisions of this Agreement or that would reasonably be expected to materially impede the completion of the transactions contemplated hereby or would render, or that would reasonably be expected to render, any representation or warranty made by Naturo in this Agreement untrue or inaccurate in any material respect at any time on or before the Effective TimeDate if then made or that would have a Material Adverse Effect on Naturo;
(ii) except as described in the Naturo Disclosure Letter, issue, grant, deliver, sell or pledge, or agree to issue, grant, deliver, sell or pledge, any shares or other debt securities or equity securities of Naturo or its subsidiaries, or any rights convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares or other debt securities or equity securities of Naturo or its subsidiaries, other than the issuance of Naturo Shares issuable on the exercise of convertible securities existing as of the date hereof; and
(iii) incur, create, assume or otherwise become liable for, any Indebtedness or any other Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, or make any loans, capital contributions, investments or advances or prepay any Indebtedness before its scheduled maturity or amend, terminate, waive or otherwise modify the definitive documentation in respect of any Indebtedness;
(iv) sell, pledge, hypothecate, lease, license, sell and lease back, mortgage, dispose of or encumber or impose any Lien on or otherwise transfer, in whole or in part, any asset of Naturo with a book value or transaction value in excess of $25,000, individually or in the aggregate, except as otherwise permitted contemplated in this Agreement;
(v) acquire (by this Section 6.11merger, PVFC will notamalgamation, and will not authorize consolidation or permit any acquisition of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates shares or representatives (collectively, “PVFC Representatives”) toassets or otherwise), directly or indirectly, any assets, securities, properties, interests, business, corporation, partnership or other business organization or division thereof, or make any investment either by the purchase of securities, contribution of capital, property transfer, or purchase of any other property or assets of any other Person (iincluding any subsidiary that is not wholly owned), or acquire any license rights or financial instrument of any other Person (including any subsidiary that is not wholly owned), other than as described in the Naturo Disclosure Letter;
(vi) initiatesell, solicitassign, encourage lease, exclusively license, abandon or permit to lapse, transfer or otherwise dispose of any Intellectual Property that is material to Naturo or its subsidiaries, other than the expiration of Intellectual Property at the end of its statutory term;
(vii) adopt a plan of liquidation or resolution providing for the liquidation or dissolution, restructuring, recapitalization or reorganization of Naturo or any of its subsidiaries; or
(viii) other than as is necessary to comply with Laws or any contract or Employee Plan in effect as of the date hereof:
(A) ▇▇▇▇▇ to, or agree or promise to grant to, any current or former officer, director, manager, employee, independent contractor or consultant of Naturo or any of its subsidiaries an increase in salary or other form of compensation or benefits or grant any new form of compensation or benefits, except for wage and/or salary increases to non-directors, non-executives, and non-officers made in the ordinary course;
(B) make any loan to any officer, employee, consultant or director of Naturo or any of its subsidiaries;
(C) take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to the grant of, acceleration of, or the making increase of, any severance, change of control, transaction, retention, bonus or termination pay to, or enter into, establish, amend or terminate any Acquisition Proposalemployment agreement, (ii) enter into service agreement, deferred compensation or participate in any discussions or negotiations other similar agreement with, furnish or hire, or terminate employment or service (except for just cause or poor performance, and the backfill of those positions in the ordinary course) of, any information relating to PVFC current or former officer, director, employee, manager, independent contractor, or consultant of Naturo or any of the PVFC Subsidiaries its subsidiaries;
(D) establish, adopt, amend, modify or afford access to the business, properties, assets, books terminate any Employee Plan or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend create or enter into any letter of intent plan, agreement, practice, program, policy, trust, fund or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided other arrangement that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result an Employee Plan if it were in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing existence as of the date of this Agreement with Agreement, except for non-material amendments in the ordinary course of business that do not materially increase costs;
(E) accelerate any parties conducted heretofore with respect right to any Acquisition Proposal. PVFC compensation or its Representatives shall promptly after the date benefits under any Employee Plan; or
(F) increase bonus levels or other benefits payable to any director, executive officer, consultant or employee of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC Naturo or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representativessubsidiaries.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Business Combination Agreement
Certain Actions. Without the prior written consent of the Holders, which consent may be withheld in the sole discretion of the Holders, the Company will not, and the Company will not permit any of its Subsidiaries to:
(a) From permit to occur any amendment, alteration or modification of its Articles of Incorporation, Bylaws or other charter or organizational documents, as constituted on the date of this Agreement, the effect of which, in the reasonable credit judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of Company under this Agreement, the Warrants, or the Shareholder Agreement;
(b) declare or make any dividends or distributions of its cash, stock, property, or assets (other than (i) dividends and distributions which are permitted pursuant to the terms of the Note Agreement and (ii) regularly scheduled dividends on the ▇▇▇▇▇▇▇▇ Preferred Stock, subject to the restrictions set forth in Section 4.04 of the Shareholder Agreement) or redeem, retire, purchase, or otherwise acquire, directly or indirectly, any of its Capital Stock or Capital Stock or securities of any Affiliate of the Company, or any securities convertible or exchangeable into Capital Stock or Capital Stock or securities of any Affiliate of the Company;
(c) effect any sale, lease, assignment, transfer, or other conveyance of any portion of the assets or operations or the revenue or income generating capacity of the Company or any Subsidiary (other than sales, leases, assignments, transfers and other conveyances which are permitted pursuant to the terms of the Note Agreement) or to take any such action that has the effect of the foregoing;
(d) except for Permitted Stock or pursuant to this Agreement, the Shareholder Agreement, the Note Agreement or the Pecks Securities Purchase Agreement, issue or sell, or otherwise dispose of any Capital Stock, or dissolve or liquidate (except that any Inactive Subsidiary may be dissolved or liquidated), or effect any consolidation or merger involving the Company or any Subsidiary (except that any Subsidiary of Precise may be merged with and into (i) Precise, provided that Precise is the surviving corporation or (ii) any other Subsidiary of Precise) or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock;
(e) enter into any business that the Company or Precise is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise);
(f) except for Permitted Stock or as otherwise permitted in the Effective TimeNote Agreement, enter into any transaction or transactions with any director, officer, or shareholder of the Company or the Shareholder, or any Affiliate or relative of the foregoing except upon terms that are disclosed in writing to the Holders and are (i) in the opinion of the Holders, fair and reasonable and (ii) in any event, at least as favorable as would result in a comparable arm's-length transaction with a Person not a director, officer, employee, shareholder, or Affiliate of the Company or the Shareholder or any Affiliate or related party of the foregoing, or advance any monies to any such Persons, except for travel advances in the ordinary course of business;
(g) increase the amount of benefits payable under any benefit plan in the aggregate, or increase the aggregate amount of professional, management, consulting or similar fees paid or accrued by the Company or its Subsidiaries during any fiscal year to or for the direct or indirect benefit of any of its officers, directors, or security holders or Affiliates beyond the amounts permitted under the Note Agreement;
(h) acquire any debt or equity interest in any Person or establish or acquire a Subsidiary (other than any Subsidiary existing on the date hereof) or, except as otherwise permitted by this Section 6.11under the Note Agreement, PVFC will notmake any additional capital contribution or purchase any additional equity in any Subsidiary or, and will not authorize except as otherwise permitted under the Note Agreement, make any advances or permit loans to any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates Subsidiary or representatives (collectively, “PVFC Representatives”) to, directly transfer any technology or indirectly, assets to any Subsidiary;
(i) initiate, solicit, encourage or take any action allow the aggregate par value of the Capital Stock subject to facilitate, including by way the Warrants from time to time to exceed the price payable on exercise of furnishing information, any Acquisition Proposalthe Warrants, as defined in Section 6.11(e)(i)adjusted from time to time; or
(j) obligate itself or otherwise agree to take, or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend permit or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
the events described in subsections (ba) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted through (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreementabove.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Warrant Purchase Agreement (Massic Tool Mold & Die Inc)
Certain Actions. (a) From Since the date of this Agreement through Balance Sheet Date, the Effective Time, except as otherwise permitted by this Section 6.11, PVFC will not, and will not authorize or permit any of Company has --------------- carried on its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined business in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate ordinary course in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except all material respects substantially in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything the procedures and practices in this Agreement to effect on the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations withBalance Sheet Date, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party except in connection with a Superior Proposal the transactions contemplated by any such third partythis Agreement, PVFC’s Board of Directors receives from such third party an executed confidentiality agreementthe Investors' Rights Agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third partyCo-Sale Agreement, PVFC promptly notifies FNB in writing of the name of such third party Registration Rights Agreement, the Letter Agreement and the material terms Commercial Agreement, since the Balance Sheet Date (and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of through the date of this Agreement with any parties conducted heretofore respect to Section 3.14(a)) there has not been with respect to the Company:
(a) any Acquisition Proposal. PVFC change in the financial condition, properties, assets, liabilities, business or its Representatives shall promptly after results of operations, which change by itself or in conjunction with all other such changes, whether or not arising in the date ordinary course of this Agreement instruct each Person which has heretofore executed business, have had or is reasonably likely to have a confidentiality agreement relating material adverse effect;
(b) any contingent liability incurred thereby as guarantor or surety with respect to an Acquisition Proposal with the obligations of others;
(c) any mortgage, encumbrance or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or lien placed on any of its Representatives to such Person the material assets or any of such Person’s Representatives properties thereof other than in accordance connection with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information equipment leases in the possession ordinary course of such Person business or the Company's lease of its headquarters;
(d) any obligation or liability for borrowed money incurred thereby other than in the ordinary course of such Person’s Representatives.business, which obligations or liabilities do not exceed in the aggregate $150,000;
(e) For purposes any purchase, license, sale or other disposition, or any agreement or other arrangement for the purchase, license, sale or other disposition, of this Agreement:any of the material properties, assets or goodwill thereof other than in the ordinary course of business;
(f) any damage, destruction or loss, whether or not covered by insurance, that would have or is reasonably likely to have a material adverse effect;
(g) any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the capital stock thereof, any split, stock dividend, combination or recapitalization of the capital stock thereof, any direct or indirect redemption, purchase or other acquisition of the capital stock thereof;
(h) any labor dispute or claim of unfair labor practices, any change in the compensation payable or to become payable to any of its officers, employees or agents, or any bonus payment or arrangement made to or with any of such officers, employees or agents;
(i) any loss of key executive, management or development personnel thereof that has had or would have a material adverse effect on the Company;
(j) any payment or discharge of a lien or liability thereof, which lien or liability was not either (i) shown on the balance sheet as of the Balance Sheet Date included in the Financial Statements or (ii) incurred in the ordinary course after the Balance Sheet Date;
(k) any obligation or liability incurred thereby to any of its officers, directors, stockholders or affiliates, or any loans or advances made thereby to any of its officers, directors, stockholders or affiliates, except normal compensation and expense allowances payable to officers;
(l) any amendment or change in the Certificate of Incorporation or Bylaws of the Company;
(m) except in connection with the issuance of the Series A Stock, any issuance or sale of any debt or equity securities (including but not limited to stock) thereby or of any options or other rights to acquire from the Company, directly or indirectly, any debt or equity securities (including but not limited to stock) thereof other than shares of Company Common Stock issued upon exercise of Company options issued pursuant to the Stock Plan; or
(n) any deferral of the payment of any accounts payable outside the ordinary course or in an amount which is material or any discount, accommodation or other concession made outside the ordinary course in order to accelerate or induce the collection of any receivable.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Exodus Communications Inc)
Certain Actions. (a) From Notwithstanding any other provisions in this Agree- ment, as long as any Preferred A Interest or Preferred B Interest remains issued and outstanding, the date of this Agreement through the Effective Time, except as otherwise permitted by this Section 6.11, PVFC will notExecutive Committee shall not approve, and will the Company shall not authorize or permit take, any of its directorsthe following actions except with the approval of (x) unless GFC has designated two GFC Directors pursuant to Section 4.13, officersthe Chairman (or, agentsif such office is vacant, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives at least one Management Director) and (collectively, “PVFC Representatives”y) to, directly or indirectly, at least one GFC Director:
(i) initiate, solicit, encourage any issuance or take agreement to issue any action to facilitate, profit share or interest (including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (iiLLC Interests) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC Company or any of its Representatives Significant Subsidiaries or any securities or rights of any kind convertible into or exchangeable for such profit share or interest, or to issue any option, warrant, put, call or other arrangement of any kind to purchase or otherwise receive from the Company any such Person profit share or interest;
(ii) any repurchase by the Company of any profit share or interest (including any LLC Interests);
(iii) subject to clause (i) in the proviso in Section 8.4, any approval or disapproval of any Transfer of any profit share or interest (including any LLC Interests) of the Company or any of such Person’s Representatives in accordance with its Significant Subsidiaries;
(iv) any incurrence of indebtedness for borrowed money or other commitment or liability, issuance of guarantees, or granting of liens over assets of the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person Company or any of its Significant Subsidiaries (whether or not in connection with such Person’s Representatives.
(e) For purposes incurrence or issuance), in each case, in excess of, whether in a single transaction or a series of this Agreement:related transactions, $15 million, including without limitation any acquisition of any asset, securities or business from any Person in excess of, whether in a single transaction or a series of related transactions, $15 million, other than of the type currently incurred or granted by GFC and its Subsidiaries, as the case may be, in the ordinary course of business;
Appears in 1 contract
Sources: Limited Liability Company Agreement (Home Holdings Inc)
Certain Actions. (a) From Stockholder agrees that after any Request Event, subject to the date terms and conditions of this Agreement through Agreement, for the Effective Time, except as otherwise permitted by this Section 6.11, PVFC will not, and will not authorize or permit period ending seven years following the consummation of the Merger neither it nor any of its directorsAffiliates (as such term is defined in Rule 12b-2 under the ▇▇▇▇ ▇▇▇) at such time, officersregardless of whether such person or entity is an Affiliate on the date hereof, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) towill, directly or indirectly, alone or in concert with others (ia) initiateacquire, solicitoffer to acquire, or agree to acquire, by purchase, gift or otherwise, any Company Common Stock or direct or indirect rights, securities or options to acquire (through purchase, exchange, conversion or otherwise) any Company Common Stock (collectively, including such rights, securities and options, the "Voting Securities") or seek to advise, encourage or take influence any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), person or any inquiries entity with respect to or the making acquisition of any Acquisition ProposalVoting Securities of the Company, (iib) enter into make, or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort "solicitation" of "proxies" (as such terms are defined in Regulation 14A promulgated by any third party that is seeking the Commission pursuant to makeSection 14 of the ▇▇▇▇ ▇▇▇) to vote, or has madecommunicate with or seek to advise, an Acquisition Proposal encourage or (iii) except in accordance influence any person or entity with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement respect to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information tovoting of, any third party in response to a Superior ProposalVoting Securities, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptlyform, and join or in any event way participate in a "group" within 24 hours, notify FNB in writing the meaning of Section 13(d)(3) of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore 1934 Act with respect to any Acquisition Proposal. PVFC Voting Securities, (d) deposit any Voting Securities into a voting trust or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating subject any such securities to an Acquisition Proposal with any arrangement or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and respect to destroy all summariesthe voting thereof, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
except as provided herein, (e) For purposes otherwise act to seek, or to assist or encourage in any respect any other person or entity to seek, to control or influence in any manner the management, Board of Directors, policies or affairs of the Company, or (f) request that the Company waive or amend any provisions of this Agreement:Section 8. Notwithstanding the foregoing, if Stockholder acquires Voting Securities as a result of the acquisition of an entity that beneficially owns Voting Securities, then Stockholder shall be permitted to dispose of such Voting Securities as promptly as is practicable.
Appears in 1 contract
Certain Actions. (a) From For so long as the date Second Supplemental Warrant or the Warrant Shares remain outstanding, without the prior written consent of this Agreement through the Effective TimeHolders, except as otherwise permitted by this Section 6.11which consent may be withheld in the sole discretion of the Holders, PVFC the Company will not, and will not authorize permit any Subsidiary to:
(a) permit to occur any amendment, alteration, or modification of the Bylaws of the Company, as constituted on the date of this Agreement, the effect of which, in the sole judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of the Company under this Agreement, the Warrant, the Restated Articles of Incorporation of the Company (sometimes called the "Certificate") or the Priority Shareholder Agreement or permit to occur any amendment, alteration, or modification of the Restated Articles of Incorporation or other charter or organizational documents of the Company, as constituted on the date of this Agreement except to the extent necessary to comply with Section 4.04(h) or 4.10;
(b) except as otherwise permitted in the Certificate or required by the Priority Shareholder Agreement or the Other Shareholder Agreements, (i) declare or make any dividends or distributions of its directorscash, officersstock, agentsproperty, employeesor assets or redeem, investment bankersretire, attorneyspurchase, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) tootherwise acquire, directly or indirectly, any of the Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company, or any securities convertible or exchangeable into Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company or otherwise make any distribution on account of the purchase, repurchase, redemption, put, call or other retirement of any shares of Capital Stock of the Company or any Subsidiary thereof or of any warrant, option or other right to acquire such shares (iexcept pursuant to the Purchase Documents) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, (as defined in Section 6.11(e)(i11.1 of the Priority Note Agreement or the Certificate), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into make any payment or participate distribution on account of any Indebtedness (as defined in any discussions or negotiations with, furnish any information relating to PVFC or any such Priority Note Agreement) of the PVFC Subsidiaries or afford access Company which is subordinate to the business, properties, assets, books or records of PVFC or any Senior Subordinated Notes (as defined in Section 11.1 of the PVFC SubsidiariesOriginal Note Agreement (as defined in the Priority Shareholder Agreement)), and the Priority Note (except that Subsidiaries may make distributions to otherwise cooperate in any way withthe Company), or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or and (iii) except as otherwise provided for in accordance with Section 8.1(g)the Priority Note Agreement or the Original Note Agreement, approve, endorse pay any professional consulting or recommend or enter into any letter of intent or similar document management fees or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data other payments to any third party in connection with a Superior Proposal by shareholder of Parent or any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligationSubsidiary; provided, however, that if the Board following shall be permitted as exceptions to the preceding provisions of Directors this clause (b): declare and make payments of PVFC shall have effected a Change (A) dividends in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as cash from Subsidiaries of the date hereof may not be rescinded), in which event Company to the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto Company to the extent required necessary to permit the Company or its Subsidiaries to pay the Priority Senior Subordinated Obligations (as defined in Section 11.1 of the Priority Note Agreement) and the Senior Subordinated Obligations (as defined in Section 11.1 of the Original Note Agreement) due and payable from the Company or its Subsidiaries to Rice, and (B) dividends or stock repurchases permitted by applicable Law. In addition to the foregoing, PVFC shall not submit to Senior Loan Agreement (as defined in Section 11.1 of the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Priority Note Agreement.);
(c) PVFC will promptlyeffect any sale, lease, assignment, transfer, or other conveyance of any material portion of the assets or operations or the revenue or income generating capacity of the Company (other than inventory in the ordinary course of business and other assets reasonably and in any event within 24 hours, notify FNB in writing good faith determined by the Company to be obsolete or no longer necessary to the business of the receipt Company or any Subsidiary and other asset dispositions permitted by the Senior Loan Agreement including the Asset Transfer (as defined in the Senior Loan Agreement)) or to take any such action that has the effect of any Acquisition Proposal or any information related thereto, which notification shall describe of the Acquisition Proposal and identify the third party making the same.foregoing;
(d) PVFC agrees except for issuances of stock permitted by the Senior Loan Agreement, the Permitted Stock, or pursuant to the express terms of this Agreement or the Other Shareholder Agreement, issue or sell, or otherwise dispose of any Capital Stock or Capital Stock of any Subsidiary, dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock of the Company or of any Subsidiary;
(e) enter into any business that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated Company or any activities, discussions or negotiations existing as of Subsidiary is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise except for businesses and acquisitions permitted by the Senior Loan Agreement);
(f) except for Permitted Stock, enter into any transaction or transactions with any parties conducted heretofore director, officer, employee, or shareholder of the Company, or any Affiliate or relative of the foregoing except upon terms that, in the opinion of the Holders, are fair and reasonable and that are, in any event, at least as favorable as would result in a comparable arm's-length transaction with respect a Person not a director, officer, employee, shareholder, or Affiliate of the Company or any Affiliate or related party of the foregoing, or advance any monies to any Acquisition Proposal. PVFC such Persons, except for travel advances in the ordinary course of business;
(g) except for (i) Permitted Indebtedness (as defined in Section 11.1 of the Priority Note Agreement), and (ii) other capital contributions, permitted purchases, advances and loans permitted by the Senior Loan Agreement, acquire any debt or its Representatives shall promptly after equity interest in any Person or establish or acquire a Subsidiary or make any additional capital contribution or purchase any additional equity in any Subsidiary or make any advances or loans to any Subsidiary or transfer any technology or assets to any Subsidiary;
(h) allow the date aggregate par value of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating the Capital Stock subject to an Acquisition Proposal with the Warrant from time to time to exceed the price payable upon exercise of the Warrant, as adjusted from time to time; or
(i) obligate itself or for the benefit of PVFC otherwise agree to promptly return take, permit or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or enter into any of its Representatives to such Person or any of such Person’s Representatives the events described in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representativessubsections (a) through (h) above.
(e) For purposes of this Agreement:
Appears in 1 contract
Certain Actions. Unless otherwise expressly provided herein, whenever any action is required under this Agreement by:
(a) From the date ▇▇▇▇ Shareholders, it shall be by the affirmative vote of this Agreement through the Effective Timeholders representing more than fifty percent (50%) of the total number of shares of Common Stock on a Diluted Basis then held by the ▇▇▇▇ Shareholders as a group, except or as otherwise permitted agreed in writing by this Section 6.11, PVFC will not, and will not authorize or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, the ▇▇▇▇ Shareholders as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.a group;
(b) Notwithstanding the TPG Shareholders, it shall be by the affirmative vote of the holders representing more than fifty percent (50%) of the total number of shares of Common Stock on a Diluted Basis then held by the TPG Shareholders as a group, or as otherwise agreed in writing by the TPG Shareholders as a group;
(c) the LG Shareholders, it shall be by the affirmative vote of the holders representing more than fifty percent (50%) of the total number of shares of Common Stock on a Diluted Basis then held by the LG Shareholders as a group, or as otherwise agreed in writing by the LG Shareholders as a group; or
(d) the DG Shareholders, it shall be by the affirmative vote of the holders representing more than fifty percent (50%) of the total number of shares of Common Stock on a Diluted Basis then held by the DG Shareholders as a group, or as otherwise agreed by the DG Shareholders as a group. The Shareholders hereby agree, notwithstanding anything to the contrary in any other agreement or at law or in equity, that when any Shareholder takes any action under this Agreement or pursuant to the contraryapplicable law to give or withhold its consent in its capacity as a Shareholder, PVFC and its Board of Directors such Shareholder shall be permitted have no duty (ifiduciary or other) to comply with Rule 14d-9 consider the interests of the Company or the other Shareholders, may act exclusively in its own interest and Rule 14e-2 promulgated under shall have only the Exchange Act with regard duty to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes act in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC foregoing shall have effected a Change in PVFC Recommendation, then no way affect the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as obligations of the date hereof may not be rescinded), in which event parties hereto to comply with the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination provisions of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Shareholders Agreement (Quintiles Transnational Holdings Inc.)
Certain Actions. (a) From Without the date prior written consent of this Agreement through the Effective TimeHolders, except as otherwise permitted by this Section 6.11--------------- which consent may be withheld in the sole discretion of the Holders, PVFC the Company will not, and will not authorize permit any Subsidiary to:
(a) permit to occur any amendment, alteration, or modification of the Bylaws of the Company, as constituted on the date of this Agreement, the effect of which, in the sole judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of the Company under this Agreement, the Warrants, the Certificate or the Shareholder Agreement or permit to occur any amendment, alteration, or modification of the Restated Articles of Incorporation or other charter or organizational documents of the Company, as constituted on the date of this Agreement except to the extent necessary to comply with Section 4.04(j) or 4.10; --------------- ----
(b) except as otherwise permitted in the Certificate or required by the Shareholder Agreement, (i) declare or make any dividends or distributions of its directorscash, officersstock, agentsproperty, employeesor assets or redeem, investment bankersretire, attorneyspurchase, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) tootherwise acquire, directly or indirectly, any of the Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company, or any securities convertible or exchangeable into Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company or otherwise make any distribution on account of the purchase, repurchase, redemption, put, call or other retirement of any shares of Capital Stock of the Company or any Subsidiary thereof or of any warrant, option or other right to acquire such shares (iexcept pursuant to Preferred Stock and Warrant Purchase Agreement - Page 25 ---------------------------------------------- the Purchase Documents or the Certificate) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, (each as defined in Section 6.11(e)(i11.1 of the Note Agreement), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into make any payment or participate in distribution on account of any discussions or negotiations with, furnish any information relating to PVFC or any Indebtedness of the PVFC Subsidiaries or afford access Company which is subordinate to the businessSenior Subordinated Notes (except that Subsidiaries may make distributions to the Company), properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or and (iii) except as otherwise provided for in accordance with Section 8.1(g)the Note Agreement, approve, endorse pay any professional consulting or recommend or enter into any letter of intent or similar document management fees or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data other payments to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligationParent or any Subsidiary; provided, however, that if the Board -------- ------- following shall be permitted as exceptions to the preceding provisions of Directors this clause (b): declare and make payments of PVFC shall have effected a Change (A) dividends in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as cash from Subsidiaries of the date hereof may not be rescinded), in which event Company to the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto Company to the extent required necessary to permit the Company or its Subsidiaries to pay the Senior Subordinated Obligations (as defined in Section 11.1 of the Note Agreement) due and payable from the Company or its Subsidiaries to each Purchaser, (B) dividends or stock repurchases permitted by applicable Law. In addition the Senior Loan Agreement (as defined in Section 11.1 of the Note Agreement), and (C) dividends on the Preferred Stock as provided in the Certificate and payments made pursuant to the foregoing, PVFC shall not submit to Purchase Documents (as defined in Section 11.1 of the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Note Agreement.);
(c) PVFC will promptlyeffect any sale, lease, assignment, transfer, or other conveyance of any material portion of the assets or operations or the revenue or income generating capacity of the Company (other than inventory in the ordinary course of business and other assets reasonably and in any event within 24 hours, notify FNB in writing good faith determined by the Company to be obsolete or no longer necessary to the business of the receipt Company and other asset dispositions permitted by the Senior Loan Agreement including the Asset Transfer (as defined in the Senior Loan Agreement)) or to take any such action that has the effect of any Acquisition Proposal or any information related thereto, which notification shall describe of the Acquisition Proposal and identify the third party making the same.foregoing;
(d) PVFC agrees except for issuances of stock permitted by the Senior Loan Agreement, the Permitted Stock, the Acquisition Merger, the Subsidiary Mergers (each as defined in Section 11.1 of the Note Agreement) and the other mergers permitted by the Senior Loan Agreement or pursuant to the express terms of this Agreement or the Shareholder Agreement, issue or sell, or otherwise dispose of any Capital Stock (including the Series B Preferred Stock) or Capital Stock of any Subsidiary, dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock of the Company or of any Subsidiary;
(e) enter into any business that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated Company or any activities, discussions or negotiations existing as of Subsidiary is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise except for businesses and acquisitions permitted by the Senior Loan Agreement);
(f) except for the employment agreements disclosed in Schedule 7.10 to the Note Agreement and except for Permitted Stock, enter into any transaction or transactions with any parties conducted heretofore director, officer, employee, or shareholder of the Company, or any Affiliate or relative of the foregoing except upon terms that, in the opinion of the Holders, are fair and reasonable and that are, in any event, at least as favorable as would result in a comparable arm's-length transaction with respect a Person not a director, officer, employee, shareholder, or Preferred Stock and Warrant Purchase Agreement - Page 26 ---------------------------------------------- Affiliate of the Company or any Affiliate or related party of the foregoing, or advance any monies to any Acquisition Proposal. PVFC or its Representatives shall promptly after such Persons, except for travel advances in the date ordinary course of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or business;
(g) except for the benefit employment agreements disclosed in Schedule 7.10 to the Note Agreement, increase the amount of PVFC remuneration permitted under Section 7.10 of the Note Agreement;
(h) except for (i) acquisitions permitted under the Note Agreement and Section 9.2 of the Senior Loan Agreement, (ii) Permitted Indebtedness (as defined in Section 11.1 of the Note Agreement), and (iii) other capital contributions, permitted purchases, advances and loans permitted by the Senior Loan Agreement, acquire any debt or equity interest in any Person or establish or acquire a Subsidiary or make any additional capital contribution or purchase any additional equity in any Subsidiary or make any advances or loans to promptly return any Subsidiary or destroy transfer any technology or assets to any Subsidiary;
(which destruction shall be certified i) except for the employment agreements disclosed in writing by such Person Schedule 7.10 of the Note Agreement, modify, amend, terminate or waive any material provision of the Employment Agreements;
(j) allow the aggregate par value of the Capital Stock subject to PVFCthe Warrants from time to time to exceed the price payable upon exercise of the Warrants, as adjusted from time to time; or
(k) all informationobligate itself or otherwise agree to take, documents and materials relating to an Acquisition Proposal permit or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or enter into any of its Representatives to such Person or any of such Person’s Representatives the events described in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s Representatives.
subsections (ea) For purposes of this Agreement:through (j) above. --------------- ---
Appears in 1 contract
Sources: Preferred Stock and Warrant Purchase Agreement (Rice Partners Ii L P)
Certain Actions. (a) From In the date of this Agreement through event that during the Effective Timethree-year period following the Closing, except as otherwise permitted by this Section 6.11, PVFC will not, and will not authorize or permit any of its directorsGreenwich II, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates GSCP Offshore or representatives GF (collectively, “PVFC Representatives”the "Greenwich Purchasers") tobeneficially own any Common Stock or any other securities of the Company eligible to vote at shareholder meetings of the Company (all such Common Stock and securities, the "Voting Securities"), such Greenwich Purchaser shall (i) be present in person or represented by proxy at all such stockholder meetings so that all such Voting Securities shall be counted for the purpose of determining the presence of quorum at such meetings, (ii) shall vote or cause to be voted all such Voting Securities for the election as Directors of the Company those persons recommended for election by the Board, (iii) with respect to all other matters submitted to a vote of the Company's common stockholders, shall vote or cause to be voted all such Voting Securities in favor and against any such matter, pro rata, to the percentages of "in favor" and "against" votes with respect to such matter made by all outstanding Voting Securities not beneficially owned by Greenwich II, provided that the provisions of this Section 9.1 shall not apply to any such matter relating to any proposed or existing stock option, stock incentive, employee benefit or other like plan or arrangement and (iv) shall not, directly or indirectly, without having been specifically requested to do so in writing by the Company or the Board vote any Voting Securities in favor of the removal of, or otherwise seek to remove from the Board, any person whose removal is not recommended by the Board. In addition, during the three-year period following the Closing, the Greenwich Purchasers shall not (i) initiatepropose or disclose an intent to propose any form of business combination, solicitacquisition, encourage restructuring, recapitalization or take any action other similar transaction relating to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition ProposalCompany, (ii) enter into acquire or participate in agree, offer, seek or propose to acquire, or make any discussions proposal with respect to the possible acquisition of, ownership (including, without limitation, beneficial ownership) of any securities or negotiations with, furnish business or any information relating to PVFC substantial part of the assets of the Company or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC its subsidiaries or any of the PVFC Subsidiaries, rights or options to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC and its Board of Directors shall be permitted (i) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal provided that the Board of Directors of PVFC shall not withdraw or modify in acquire such ownership from a manner adverse to FNB the PVFC Recommendation except as set forth in subsection (iii) below, (ii) to engage in any discussions or negotiations with, and provide any information to, any third party in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so would be reasonably likely to result in a breach of their fiduciary duties under applicable Law, (y) prior to providing any information or data to any third party in connection with a Superior Proposal by any such third party, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering otherwise, except any such acquisition resulting from the exercise of their respective Options or their respective conversion of any Shares into discussions Common Stock or negotiations with for any third partyother acquisitions which, PVFC promptly notifies FNB after giving effect thereto, do not in writing the aggregate exceed 1% of the name of such third party Company's issued and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing outstanding Common Stock as of the date of this Agreement such acquisition, (iii) seek or propose to control the Company's management or policies (except by virtue of the exercise of their respective approval rights set forth in Section 10.3 hereof), (iv) except as approved by the Board, make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in the Commission Rules) to vote, or seek to advise or influence any person or entity with respect to the voting of, any Voting Securities of the Company, (v) enter into any discussions, negotiations, arrangements or understandings with any parties conducted heretofore third party with respect to any Acquisition Proposal. PVFC of the foregoing, (vi) disclose any intention, plan or its Representatives shall promptly after arrangement inconsistent with the date foregoing, or (vii) request the Company, directly or indirectly, to amend or waive any provisions of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC or any of its Representatives to such Person or any of such Person’s Representatives in accordance with the terms of any confidentiality agreement with such Person and to destroy all summaries, analyses or extracts of or based upon such information in the possession of such Person or any of such Person’s RepresentativesSection 9.1.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Preferred Stock Purchase and Option Agreement (Travelers Group Inc)
Certain Actions. (a) From the date of this Agreement through the Effective Time, except as otherwise permitted by this Section 6.11, PVFC will not, and will not authorize or permit any of its directors, officers, agents, employees, investment bankers, attorneys, accountants, advisors, agents, affiliates or representatives (collectively, “PVFC Representatives”) to, directly or indirectly, (i) initiate, solicit, encourage or take any action to facilitate, including by way of furnishing information, any Acquisition Proposal, as defined in Section 6.11(e)(i), or any inquiries with respect to or the making of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to PVFC or any of the PVFC Subsidiaries or afford access to the business, properties, assets, books or records of PVFC or any of the PVFC Subsidiaries, to otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or (iii) except in accordance with Section 8.1(g), approve, endorse or recommend or enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal.
(b) Notwithstanding anything in this Agreement to the contrary, PVFC the Company shall not, and shall not permit any Company Subsidiary (or, for the avoidance of doubt, any Person that immediately after such transaction would be a Company Subsidiary) to, and no Manager shall vote to cause the Company or any Company Subsidiary to, without the prior written consent of (or a prior written waiver from) Sponsor in its Board of Directors shall be permitted sole discretion and in its capacity as a Member:
(i) alter in any material respect the Business or the operations of the Company and the Company Subsidiaries, in each case as of immediately after the Closing, except where such alterations are contained in the annual business plans approved hereafter by the Board (collectively, the “Approved Business Plans”);
(ii) approve (A) the annual business plan, including annual operating and capital budgets of the Company and the Company Subsidiaries or (B) any subsequent material deviations from any such Approved Business Plan or annual operating budget;
(iii) alter, amend, repeal or waive (or propose to comply alter, amend, repeal or waive) by any means (including by merger, consolidation, conversions, Transfer, liquidation, dissolution or any other means) any provision of this Agreement or any other governing or organizational document of the Company or any Company Subsidiary; or commit or agree to do any of the foregoing;
(iv) (A) increase or decrease the number of representatives on the Board or any Board committee; or (B) amend, modify, reduce, eliminate or otherwise alter or circumscribe, in any way, the rights of certain Persons to designate Managers; or (C) institute, modify, increase or waive any requirement to serve as a Manager on the Board, any committee thereof, including with Rule 14d-9 and Rule 14e-2 promulgated respect to independence;
(v) liquidate (including pursuant to Section 11.2), dissolve (including pursuant to Section 11.1), incur or suffer an Insolvency Event or take any other action under Article XI;
(vi) enter into, amend, alter or waive any material rights with respect to any arrangements, transactions or agreements with (x) any affiliate, Manager, Member, manager, member, partner, director, officer, employee, consultant, advisor, counsel or service provider of the Exchange Act Company or any Company Subsidiary, or (y) any affiliate or member of the Family Group of any affiliate, Manager, Member, manager, member, partner, director, officer, employee, consultant, advisor, counsel or service provider of the Company or any Company Subsidiary or other related parties, including any management incentive or compensation plan (other than the Incentive Equity Plan (it being understood that any termination, amendment, increase, modification or waiver of the Incentive Equity Plan (including any increase in the number of Units to be issued thereunder (or the terms of the Units authorized thereunder) following the date hereof will require the prior written consent of Sponsor)); except, with regard to actions that would otherwise be subject to this Section 6.1(b)(vi), those actions which are in the ordinary course of business and on terms and conditions not less favorable, when considered on the whole, to the Company or such Company Subsidiary, as the case may be, that could be obtained on an Acquisition Proposal provided arm’s-length basis from unrelated or unaffiliated third parties;
(vii) make or guarantee directly or indirectly, any loans or advances to any employee, executive officer, director, Manager, Member, manager, member, or partner of the Company or a Company Subsidiary;
(viii) hire, terminate (actually or constructively) or materially alter the responsibilities, compensation or benefits of the chief executive officer (or equivalent) of the Company;
(ix) (A) change or replace the public accountants or outside auditors of the Company and/or the Company Subsidiaries, except that the Board Company and/or any Company Subsidiary may, without the prior consent of Directors Sponsor, initially replace the Company’s existing auditors; (B) change any material accounting policy, method, principle or practice used by the Company and/or the Company Subsidiaries; (C) depart from GAAP on any of PVFC shall not withdraw the Company’s or modify a Company Subsidiary’s annual and quarterly financial statements; (D) select, retain, amend or terminate (or propose to amend or retain, or threaten to terminate) any retention, engagement, advisory, brokerage, transaction or underwriting arrangement or agreement (or the compensation or payments to be made by, or the obligations of, the Company or the Company Subsidiaries thereunder) with any underwriter, manager, financial advisor, broker or banker to the Company and/or the Company Subsidiaries in connection with a manner adverse Sale Transaction (or process to FNB the PVFC Recommendation except as set forth in subsection effect a Sale Transaction) or initial Public Offering; or (iiiE) belowenter into, (ii) to engage in amend, alter or waive any discussions material rights, obligations or negotiations with, and provide any information toterms of, any third party Material Contract or any Strategic Relationship, in response to a Superior Proposal, as defined in Section 6.11(e)(ii), by any such third party, if and only to the extent that (x) PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel, that failure to do so each case which would be reasonably likely to result in a breach financial impact on the Company or any Company Subsidiary in excess of their fiduciary duties under applicable Law$5 million;
(x) create, (y) prior authorize, assign, grant, sell or issue any Units, Equity Securities or other interests, or instruments comprising, linked to providing any information or data to any third party in connection with a Superior Proposal by any such third partybased on Units, PVFC’s Board of Directors receives from such third party an executed confidentiality agreement, which confidentiality terms shall be no less favorable to PVFC than those contained in Equity Securities or the Confidentiality Agreements between PVFC and FNB and (z) at least 48 hours prior to providing any information or data to any third party or entering into discussions or negotiations with any third party, PVFC promptly notifies FNB in writing profits of the name of such third party and the material terms and conditions of any such Superior Proposal and (iii) to withdraw, modify, qualify in a manner adverse to FNB, condition or refuse to make the PVFC Recommendation (the “Change in PVFC Recommendation”) if PVFC’s Board of Directors concludes in good faith, after consultation with outside counsel and financial advisors, that failure to do so could reasonably be expected to breach their fiduciary duties under applicable Law. Notwithstanding any Change in PVFC Recommendation, this Agreement shall be submitted to the shareholders of PVFC at the PVFC Shareholders’ Meeting for the purpose of voting on the approval of this Agreement and nothing contained herein shall be deemed to relieve PVFC of such obligation; provided, however, that if the Board of Directors of PVFC shall have effected a Change in PVFC Recommendation, then the Board of Directors of PVFC may submit this Agreement to PVFC’s shareholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded), in which event the Board of Directors of PVFC may communicate the basis for its lack of a recommendation to PVFC’s shareholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by applicable Law. In addition to the foregoing, PVFC shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger prior to the termination of this Agreement.
(c) PVFC will promptly, and in any event within 24 hours, notify FNB in writing of the receipt of any Acquisition Proposal or any information related thereto, which notification shall describe the Acquisition Proposal and identify the third party making the same.
(d) PVFC agrees that it will, and will cause the PVFC Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. PVFC or its Representatives shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of PVFC to promptly return or destroy (which destruction shall be certified in writing by such Person to PVFC) all information, documents and materials relating to an Acquisition Proposal or to PVFC or its businesses, operations or affairs heretofore furnished by PVFC Company or any of its Representatives the Company Subsidiaries or that otherwise provide a Person with the benefits of the same (other than issuances of Class A Common Units or Class B Common Units approved by the Board under the Incentive Equity Plan pursuant to Equity Agreements);
(xi) admit any Person as a Member (or otherwise provide a Person with the benefits thereof) or admit any Person as a Substitute Member (other than any Permitted Transferee in accordance with Section 10.1);
(xii) make any acquisitions or investments (or propose to make acquisitions or make investments), whether in the form of debt or equity, whether in one transaction or a series of related transactions and regardless of how such Person transaction is structured; provided that, without the prior written consent of Sponsor (A) the Company and the Company Subsidiaries may acquire the equity of, or make an investment in, or enter into a joint venture with, entities in the Business, in each case, whether pursuant to a single transaction or a series of related transactions, involving or with an aggregate value of less than $25 million, and (B) enter into any acquisition or investment transaction which would be allowed under the provisions of Section 6.1(b)(xii) above;
(xiii) dispose of or divest (or propose to dispose of or divest) or exchange or sell any portion of the assets, or Units or Equity Securities of the Company, any Company Subsidiary or any Affiliate of the Company (each a “Disposal”), (A) any such Personproperty with a Fair Market Value in excess of $10 million, in the case of any one such Disposal (whether consummated in a single transaction or a series of related transactions), and (B) any such property with an aggregate Fair Market Value in excess of $45 million, in the case of all Disposals permitted under this Section 6.1(b)(xv), including any Disposals for which Sponsor consent is required under the preceding clause (A), taken as a whole;
(xiv) enter into any merger, combination, conversion, consolidation, amalgamation, recapitalization, reorganization, joint venture or partnership, where such transaction, or series of related transactions would be material to the Company and the Company Subsidiaries;
(xv) (A) make any Distribution (for the avoidance of doubt, other than Tax Distributions), declare any dividend on, or repurchase or redeem, any Units or Equity Securities of the Company or any Company Subsidiary, except as specifically set forth in the Incentive Equity Plan and the applicable Equity Agreement, or (B) in the Company’s Representatives capacity as a manager, director, member, partner, shareholder or interestholder of any Company Subsidiary, directly or indirectly cause or permit any distribution by any Company Subsidiary not in accordance with the terms of such Company Subsidiary’s operating agreement, certificate of incorporation, stockholders agreement or similar governing document consistent with past practices or prior course of conduct;
(xvi) initiate, defend, prosecute, settle or waive any confidentiality agreement with claim, arbitration, lawsuit or other legal action or Proceeding (or any threatened claim, arbitration, lawsuit or other legal action or Proceeding), to the extent that (A) the amount in dispute or any value otherwise pertaining to any such Person and action would reasonably be expected to destroy all summariesexceed $4 million, analyses individually or extracts of or based upon such information in the possession aggregate, (B) any such action involves a Governmental Entity as a party or includes allegations of such Person a criminal nature, or (C) the resolution of which would result in equitable relief being imposed on the Company or any Company Subsidiary, and whether initiated by the Company or any of such Person’s Representatives.the Company Subsidiaries, any party hereto, any Affiliates of any party hereto, or by any third party;
(exvii) For change or convert the current legal form or organizational structure of the Company or any Company Subsidiary or change the classifications for Tax purposes of the Company or any Company Subsidiary;
(xviii) change or adopt any method of allocating Profits, Losses or taxable items of income, loss, credit or deduction that may adversely impact any member of the Sponsor Group (or any direct or indirect member of any member of the Sponsor Group); or
(xix) make or guarantee directly or indirectly, any loans or advances to any sales representatives or sales associates of the Company or a Company Subsidiary. The Board, the Chief Executive Officer, the Chief Financial Officer, the President or the General Counsel of the Company, as applicable, shall promptly and, in any case, prior to making any determination to take any action (or determination that requires omitting to take action) requiring the prior written consent of the Sponsor pursuant to this Agreement:, disclose in writing to the holders of Sponsor Equity any such fact, matter, circumstance or other information pertaining to matters requiring the prior written consent of the Sponsor that would be material or relevant to a prudent person in deciding whether or not to consent to any such matter. Pursuant to Section 6.7(b), Sponsor shall have an amount of time reasonable under the circumstances to duly consider such fact, matter, circumstance and other information, which consideration may include consultation with advisors and representatives, or approval from any internal decision making body, in making a determination to provide or withhold its consent or approval in Sponsor’s sole discretion. Any action (or determination that requires omitting to take action) that is ultimately determined to require the prior written consent of the Sponsor pursuant to this Agreement, including this Section 6.1(b), that is taken (or determination made not to act) without such prior written consent shall be void ab initio and shall not be a binding or authorized obligation or determination of the Company or any Company Subsidiary.
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