Conduct of Business by Parent Pending the Closing. Between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, except (1) for any Permitted Action, (2) as required by Law or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated by any other provision of this Agreement, or (5) with the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), Parent will, and will cause each of its Subsidiaries (i) to conduct its operations in all material respects in the ordinary course of business, and (ii) to use commercially reasonable efforts to keep available the services of the current officers, employees and consultants of Parent and each of its Subsidiaries and to preserve the goodwill and current relationships of Parent and each of its Subsidiaries with customers, suppliers and other Persons with which Parent or any of its Subsidiaries has significant business relations. Without limiting the foregoing, except (w) for any Permitted Action, (x) as required by Law or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated by any other provision of this Agreement, Parent shall not, and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, directly or indirectly, take any of the following actions without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed): (a) amend or otherwise change the certificate of incorporation and bylaws or any other organizational documents of Parent or any of its Subsidiaries; (b) except for dividends or other distributions paid by a wholly owned Subsidiary of Parent to Parent or another wholly owned Subsidiary of Parent, declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or other Equity Interests; or (c) authorize or enter into any Contract or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided herein, nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 2 contracts
Sources: Merger Agreement (Maxlinear Inc), Merger Agreement (Maxlinear Inc)
Conduct of Business by Parent Pending the Closing. Between the date of this Agreement and the earlier Except as set forth in Section 5.1(b) of the Effective Time and the termination of this Agreement in accordance with Article 7, except (1) for any Permitted Action, (2) Parent Disclosure Memorandum or as required by Law or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated by any other provision of this Agreement, or (5) with the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), Parent will, and will cause each of its Subsidiaries (i) to conduct its operations in all material respects in the ordinary course of business, and (ii) to use commercially reasonable efforts to keep available the services of the current officers, employees and consultants of Parent and each of its Subsidiaries and to preserve the goodwill and current relationships of Parent and each of its Subsidiaries with customers, suppliers and other Persons with which Parent or any of its Subsidiaries has significant business relations. Without limiting the foregoing, except (w) for any Permitted Action, (x) as required by Law or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated specifically permitted by any other provision of this Agreement, Parent shall notnot (unless required by applicable Law), and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7Time, directly or indirectly, take do, or agree to do, any of the following actions without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed):Company:
(ai) amend or otherwise change the its certificate of incorporation and or bylaws or any other organizational documents in a manner that adversely affects the rights of holders of Parent or any Common Stock (including holders of its Subsidiariesthe Parent Common Stock issuable in the Merger);
(bii) except for dividends or other distributions paid by a wholly owned Subsidiary of Parent to Parent or another wholly owned Subsidiary of Parent, declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock, other than quarterly dividends consistent with past practice and dividends paid by a wholly-owned Subsidiary of Parent to Parent or to any other wholly-owned Subsidiary of Parent;
(iii) redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other securities at a price above the then prevailing fair market value of such capital stock, Equity Interests or other securities;
(iv) issue, sell, pledge, dispose of, grant, transfer or encumber any shares of capital stock of, or other Equity Interests in, Parent or any of its Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, other than (A) as may be required by any Contracts in existence on the date hereof, (B) in the ordinary course of business consistent with past practice, (C) in arm’s length transactions, the terms of which have been approved by the Parent Board and are believed by the Parent Board to reflect fair value, or (D) upon the exercise of Parent Options and Parent Warrants outstanding as of the date hereof or hereafter granted in the ordinary course of business consistent with past practice;
(v) merge or consolidate Parent or Merger Sub with any other person or acquire any business (except in either case as would not reasonably be expected to materially delay the consummation of the Merger or result in any of the conditions to the Merger set forth in Article VI not being satisfied), or liquidate or dissolve Parent or Merger Sub; or
(cvi) authorize or enter into any Contract agreement or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided herein, nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 2 contracts
Sources: Merger Agreement (Zhone Technologies Inc), Merger Agreement (Paradyne Networks Inc)
Conduct of Business by Parent Pending the Closing. Between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, except (1) for any Permitted Action, (2) as required by Law or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated by any other provision of this Agreement, or (5) with the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), The Parent will, and will cause each of its Subsidiaries (i) to conduct its operations in all material respects in the ordinary course of business, and (ii) to use commercially reasonable efforts to keep available the services of the current officers, employees and consultants of Parent and each of its Subsidiaries and to preserve the goodwill and current relationships of Parent and each of its Subsidiaries with customers, suppliers and other Persons with which Parent or any of its Subsidiaries has significant business relations. Without limiting the foregoing, except (w) for any Permitted Action, (x) as required by Law or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated by any other provision of this Agreement, Parent shall not, and shall not permit any of its Subsidiaries toagrees that, between the date of this Agreement and the earlier Effective Time, except as set forth in Section 5.1(b) of the Effective Time Parent Disclosure Memorandum or as specifically permitted by any other provision of this Agreement, unless the Company shall otherwise agree in writing, the Parent will, and will cause its Subsidiaries to, will conduct its operations only in the termination ordinary and usual course of business consistent with past practice. Without limiting the foregoing, and as an extension thereof, except as set forth in Section 5.1(b) of the Parent Disclosure Memorandum or as specifically permitted by any other provision of this Agreement, the Parent shall not, and shall not permits any of its Subsidiaries to (unless required by applicable Law), between the date of this Agreement in accordance with Article 7and the Effective Time, directly or indirectly, take do, or agree to do, any of the following actions without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed):Company:
(ai) amend or otherwise change the certificate Parent Certificate or Parent Bylaws;
(ii) (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of incorporation and bylaws any shares of capital stock of, or other Equity Interests in, the Parent of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other organizational documents ownership interest (including, without limitation, any such interest represented by contract right), of the Parent, other than the issuance of Parent Common Stock upon the exercise of Parent Options outstanding as of the date hereof in accordance with their terms, the issuance of Parent Common Stock upon the exercise of Parent Warrants outstanding as of the date hereof in accordance with their terms or the issuance of Parent Options in accordance with the ordinary course of the Parent’s business, or (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Parent Material Intellectual Property) of its Subsidiariesthe Parent, except pursuant to existing Contracts or commitments or the sale or purchase of goods or services in the ordinary course of business consistent with past practice, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice;
(biii) except for dividends or other distributions paid by a wholly owned Subsidiary of Parent to Parent or another wholly owned Subsidiary of Parent, declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or enter into any agreement with respect to the voting of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity InterestsInterests or other securities;
(v) (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other than acquisitions of inventory or other assets in the ordinary course of business consistent with past practice, (B) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, except for indebtedness for borrowed money incurred by the Parent or any of its Subsidiaries in the ordinary course of business consistent with past practice pursuant to the terms of a Parent Material Contract, (C) terminate, cancel or request any material change in, or agree to any material change in, any Company Material Contract other than as arising in the ordinary course of business, or (D) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1(b)(v);
(vi) except as may be required by contractual commitments or corporate policies with respect to employee severance or termination pay in existence on the date of this Agreement as disclosed in Section 4.11(b) of the Parent Disclosure Memorandum: or in the ordinary course of business consistent with past practice: (A) materially increase the compensation or benefits payable or to become payable to its directors, officers or employees; (B) grant any rights to severance or termination pay to, or amend or enter into any new Parent Benefit Plan, except to the extent required by applicable Law; or (C) amend or waive any performance or vesting criteria or accelerate the vesting, exercisability or funding under any Parent Benefit Plan (except to the extent required by the terms of any such Parent Benefit Plan as of the date of this Agreement);
(vii) (A) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms, (B) accelerate or delay collection of any material notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, or (C) delay or accelerate payment of any material account payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice;
(viii) make any material change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Entity;
(ix) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration;
(x) make any material Tax election, settle or compromise any material liability for Taxes, amend any material Tax Return or file any refund for any material amount of Taxes; provided, that the Parent shall promptly provide to the Company a copy of any such amended Tax Return or filing for any refund;
(xi) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which the Parent is a party;
(xii) knowingly act in a manner intended or reasonably expected to materially delay the consummation of the Merger or result in any of the conditions to the Merger set forth in Article VI not being satisfied, except as otherwise permitted by this Agreement or required by applicable Law or any judicial or regulatory authority; or
(cxiii) authorize or enter into any Contract agreement or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided herein, nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 2 contracts
Sources: Merger Agreement (Pfsweb Inc), Merger Agreement (Ecost Com Inc)
Conduct of Business by Parent Pending the Closing. Between Parent agrees that, between the date of this Agreement Date and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7pursuant to its terms or the Effective Time, except (1) for any Permitted Action, (2) as required by Law set forth in Section 5.1 of the Parent Disclosure Schedule or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated specifically permitted by any other provision of this Agreement, or (5) with unless authorized and previously approved in writing by the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed)Company, Parent will, and will cause each of its Subsidiaries (i) to conduct its operations in all material respects only in the ordinary and usual course of businessbusiness consistent with past practice, and (ii) to use commercially reasonable efforts to preserve intact its current business organization, keep available the services of the its current officerskey employees and officers and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and consultants of Parent and each of its Subsidiaries and to preserve the goodwill and current other persons having business relationships of Parent and each of its Subsidiaries with customers, suppliers and other Persons with which Parent or any of its Subsidiaries has significant business relationsSubsidiaries. Without limiting the foregoing, and as an extension thereof, except (w) for any Permitted Action, (x) as required by Law set forth in Section 5.1 of the Parent Disclosure Schedule or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated specifically permitted by any other provision of this Agreement, Parent shall notnot (unless required by applicable Law), and shall not permit any of its Subsidiaries to, between the date of this Agreement Date and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7pursuant to its terms or the Effective Time, directly or indirectly, take do, or agree to do, any of the following actions without unless authorized and previously approved in writing by the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed):Company:
(a) amend or otherwise change the its certificate of incorporation and bylaws or by-laws or equivalent organizational documents;
(b) (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock of, or other Equity Interests in, Parent or any of its Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other organizational documents ownership interest (including, without limitation, any such interest represented by contract right), of Parent or any of its Subsidiaries, other than the (i) issuance of Parent Common Stock upon the exercise of Parent Options or Parent Warrants outstanding as of the date hereof in accordance with their terms or (ii) the grant of options at the Closing to such persons, on such terms and in such amounts as set forth in Section 5.1(b)(A)(ii) of the Parent Disclosure Schedule, or (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets of Parent or any of its Subsidiaries, except pursuant to existing Contracts or commitments or the sale or purchase of goods in the ordinary course of business consistent with past practice;
(bc) except for dividends or other distributions paid by a wholly owned Subsidiary of Parent to Parent or another wholly owned Subsidiary of Parent, declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Subsidiary of Parent to Parent or to any other wholly-owned Subsidiary of Parent) or enter into any agreement with respect to the voting of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other Equity Interestssecurities (other than in connection with the termination of an employee pursuant to existing repurchase rights);
(e) (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice, (B) other than the Parent Notes, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than a wholly-owned Subsidiary of Parent) for borrowed money (other than ordinary course trade accounts payable, which shall not be material in the aggregate), (C) terminate, cancel or request any material change in, or agree to any material change in, any Parent Material Contract, or (D) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1(e) other than a new lease agreement for the Parent’s principal executive office and facilities;
(f) (A) increase the compensation or benefits payable or to become payable to its directors, officers or employees; (B) grant or modify any rights to severance change-in-control or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of Parent or any of its Subsidiaries (other than as contemplated in this Agreement), or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law; or (C) take any affirmative action to amend or waive any performance or vesting criteria, accelerate vesting, exercisability or funding or exercise any discretion under any Parent Benefit Plan;
(g) (A) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms, (B) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, or (C) delay or accelerate payment of any account payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice;
(h) make any change in accounting policies or procedures, except as required by GAAP or by a Governmental Entity;
(i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration;
(j) change its method of accounting, make any material tax election, settle or compromise any material liability for Taxes, amend any Tax Return or file any refund for Taxes;
(k) take, or agree to take, any action that would reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code or fail to take any action that would reasonably be expected to be necessary to cause the Merger to so qualify;
(l) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which Parent is a party;
(m) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article VI not being satisfied; or
(cn) authorize or enter into any Contract agreement or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided hereinParent shall fully and promptly inform the Company of all discussions, nothing contained in this Agreement is intended negotiations or activities related to give the Companylicense, directly sale, or indirectlypotential license or sale, the right to control or direct Parent’s of any asset of Parent or its Subsidiaries’ operations prior to , and shall promptly provide the Effective Time. Prior to Company copies of any written materials (including materials in electronic form or otherwise) received from any third party in connection with any of the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operationsforegoing.
Appears in 2 contracts
Sources: Merger Agreement (RespireRx Pharmaceuticals Inc.), Merger Agreement (Cortex Pharmaceuticals Inc/De/)
Conduct of Business by Parent Pending the Closing. Between Prior to the date of this Agreement and Closing Date, unless the earlier of the Effective Time and the termination of this Agreement Company shall otherwise agree in accordance with Article 7, except (1) for any Permitted Action, (2) as required by Law writing or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated by this Agreement:
(a) The Parent Legacy Business (defined below) shall be conducted only in the ordinary course;
(b) Parent shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its charter or Bylaws other provision of than to effectuate the transactions contemplated hereby; or (iii) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock;
(c) Except as contemplated by this Agreement, or (5) with the prior written consent of the Company (Parent shall not to be unreasonably withheld, conditioned or delayed), Parent will, and will cause each of its Subsidiaries (i) issue or agree to conduct issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its operations capital stock other than to effectuate the transactions contemplated or permitted pursuant to this Agreement; (ii) acquire or dispose of any assets other than in all material respects the ordinary course of business (except for the disposition contemplated in connection with the subject matter of Section 7.2(a) hereof); (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction except in the ordinary course of business; (iv) enter into any contract, and (ii) agreement, commitment or arrangement with respect to use commercially reasonable efforts to keep available the services any of the current officersforegoing or (v) enter into any contract, employees agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business contract or enter into any negotiations in connection therewith;
(d) Parent will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (defined below). Parent will promptly advise the Company orally and consultants in writing of Parent any such inquiries or proposals (or requests for information) and each of its Subsidiaries and to preserve the goodwill and current relationships of Parent and each of its Subsidiaries with customers, suppliers and substance thereof. “Acquisition Proposal” shall mean any proposal for a merger or other Persons with which business combination involving Parent or any of its Subsidiaries has significant business relations. Without limiting Affiliates or for the foregoing, except (w) for any Permitted Action, (x) as required by Law or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated by any other provision acquisition of this Agreement, Parent shall not, and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement a substantial equity interest in accordance with Article 7, directly or indirectly, take any of the following actions without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed):
(a) amend or otherwise change the certificate of incorporation and bylaws or any other organizational documents of Parent or any of its Subsidiaries;
(b) except for dividends Affiliates or any material assets of any of them other distributions paid than as contemplated by a wholly owned Subsidiary of this Agreement. Parent will immediately cease and cause to Parent be terminated any existing activities, discussions or another wholly owned Subsidiary of Parent, declare, set aside, make or pay negotiations with any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) Person conducted heretofore with respect to any of its capital stock or other Equity Interests; or
(c) authorize or enter into any Contract or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided herein, nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.; and
Appears in 1 contract
Conduct of Business by Parent Pending the Closing. Between During the period from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7or the Closing, Parent covenants and agrees that, except (1) for any Permitted Action, (2) as required by Law or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated by any other provision of this Agreement, or (5) with the prior written consent set forth in Section 4.2 of the Parent Disclosure Schedule or unless the Company (not to be unreasonably withheld, conditioned or delayed)Shareholder shall otherwise agree in writing, Parent will, and will cause each of its Subsidiaries (i) to shall conduct its operations in all material respects in the ordinary course of business, and (ii) to use commercially reasonable efforts to keep available cause the services businesses of the current officersParent Subsidiaries to be conducted, employees in the Ordinary Course of Business and consultants of Parent and each of its Subsidiaries and to preserve the goodwill and current relationships of Parent and each of its Subsidiaries consistent with customerspast practice, suppliers and other Persons with which than actions taken by Parent or any the Parent Subsidiaries in contemplation of its Subsidiaries has significant business relations. Without limiting the foregoing, except (w) for any Permitted Action, (x) as required by Law or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated by any other provision of this Agreement, Parent shall notStock Purchase and Sale, and shall not permit directly or indirectly do, or cause or allow any of its the Parent Subsidiaries toto do or propose to do, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7or propose to do, directly or indirectly, take any of the following actions without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed):Shareholder:
(ai) amend or otherwise change Parent’s Certificate of Incorporation or Bylaws;
(ii) issue, sell, pledge, dispose of or encumber, or authorize the certificate issuance, sale, pledge, disposition or encumbrance of, any shares of incorporation and bylaws capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other organizational documents of Parent ownership interest (including, without limitation, any phantom interest) in Parent, Acquisition Sub or any of its Subsidiariestheir Affiliates, except for the issuance of shares of Parent Common Stock issuable upon the exercise of the Stock Options and Warrants and other commitments listed in Section 3.2 of the Parent Disclosure Schedule;
(iii) sell, transfer, lease to others or otherwise dispose of or subject to any encumbrance any material assets or properties owned by it or purchase, lease from others or otherwise acquire any material assets or properties (except for (a) purchases or sales of assets in the Ordinary Course of Business and in a manner consistent with past practice, (b) except for dividends dispositions of obsolete or other distributions paid by a wholly owned Subsidiary worthless assets, and (c) purchases or sales of Parent to Parent or another wholly owned Subsidiary immaterial assets not in excess of Parent, $20,000);
(iv) (a) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, stock or property or a any combination thereof) with in respect to of any of its capital stock, (b) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other Equity Interests; or
securities in respect of, in lieu of or in substitution for shares of its capital stock, or (c) authorize amend the terms or enter into any Contract change the period of exercisability of, purchase, repurchase, redeem or otherwise make acquire, or permit any commitment Person to do purchase, repurchase, redeem or otherwise acquire, any of the foregoing. Except as otherwise expressly provided hereinits securities, nothing contained in this Agreement is intended to give the Companyincluding shares of Parent Common Stock or any option, warrant or right, directly or indirectly, to acquire shares of Parent Common Stock;
(a) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof; (b) incur any indebtedness for borrowed money, except for borrowings and reborrowing under its existing credit facilities or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the right obligations of any Person, or make any loans or advances, except in the Ordinary Course of Business consistent with past practice; (c) authorize any capital expenditures or purchases of fixed assets which are, in the aggregate, in excess of the amount set forth in Section 4.2 of the Parent Disclosure Schedule for Parent and its Subsidiaries taken as a whole; or (d) enter into or amend any contract, agreement, commitment or arrangement to control effect any of the matters prohibited by subparagraph (v) of this Section 4.2;
(vi) make any change in the rate of compensation, commission, bonus or direct Parent’s other remuneration payable, or pay or agree or promise to pay, conditionally or otherwise, any bonus, extra compensation, pension or severance or vacation pay, to any director, officer, employee, salesman or agent of Parent or its Subsidiaries’ operations Subsidiaries except in the Ordinary Course of Business consistent with prior practice and pursuant to or in accordance with plans disclosed in Section 3.14.2 of the Parent Disclosure Schedule that were in effect as of the date of this Agreement or make any increase in or commitment to increase any employee benefits, adopt or make any commitment to adopt any additional employee benefit plan or make any contribution, other than regularly scheduled contributions, to any Employee Benefit Plan;
(vii) take any action to change accounting practices, policies or procedures (including procedures with respect to revenue recognition, payments of accounts payable or collection of accounts receivable);
(viii) make any material tax election inconsistent with past practice or settle or compromise any material federal, state, local or foreign Tax liability or agree to an extension of a statute of limitations, except to the Effective Time. Prior to extent the Effective Timeamount of any such settlement has been reserved for in Parent Financial Statements;
(ix) pay, Parent shall exercisedischarge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction when due, in the Ordinary Course of Business and consistent with past practice of liabilities reflected or reserved against in Parent Financial Statements or incurred after the terms Parent Balance Sheet Date, in the Ordinary Course of Business and conditions consistent with past practice;
(x) enter into any transaction, contract or commitment other than in the Ordinary Course of Business; or
(xi) take, or agree in writing or otherwise to take, any of the actions described in subparagraphs (i) through (x) of this Section 4.2, or any action which would make any of the representations or warranties of Parent contained in this Agreement untrue or incorrect or prevent Parent and Acquisition Sub from performing or cause Parent and Acquisition Sub not to perform its covenants and agreement in this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 1 contract
Conduct of Business by Parent Pending the Closing. Between Except for matters set forth in Section 5.02 of the Parent Disclosure Letter or otherwise expressly permitted by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from the date of this Agreement and the earlier of to the Effective Time and the termination of this Agreement in accordance with Article 7, except (1) for any Permitted Action, (2) as required by Law or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated by any other provision of this Agreement, or (5) with the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed)Time, Parent willshall, and will shall cause each of its Subsidiaries to, (i) to conduct its operations in all material respects business in the ordinary course of business, business consistent with past practice and (ii) to use commercially reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of the current their respective present officers, key employees and consultants of Parent key independent contractors, and each of its Subsidiaries and to preserve the goodwill and current business relationships of Parent and each of its Subsidiaries with customers, suppliers suppliers, licensors, licensees and other Persons others having business relationships with which Parent or any them. In addition, and without limiting the generality of its Subsidiaries has significant business relations. Without limiting the foregoing, except (w) for any Permitted Action, (x) as required by Law matters set forth in Section 5.02 of the Parent Disclosure Letter or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated permitted by any other provision of this Agreement, from the date of this Agreement to the Effective Time, Parent shall notnot (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, directly or indirectly, take do any of the following actions without the prior written consent of the Company (Company, which consent shall not to be unreasonably withheld, conditioned withheld or delayed)::
(a) (i) amend or otherwise change the propose to amend Parent’s certificate of incorporation and or bylaws or similar governing documents, or materially amend or propose to materially amend any of Parent’s Subsidiaries’ certificate of incorporation or bylaws or similar governing documents, (ii) split, combine or reclassify their outstanding capital stock or issue or authorize the issuance of any other organizational documents security in respect or, in lieu of, or in substitution for, shares of its capital stock, (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise, except for the payment of dividends or distributions to Parent or any of its Subsidiaries by a Subsidiary of Parent, (iv) merge or consolidate with any Person (other than a merger among wholly-owned Subsidiaries of Parent or a merger between Parent and its wholly-owned Subsidiaries), or (v) enter into any agreement with respect to the voting of its capital stock or other securities held by Parent or any of its Subsidiaries;
(b) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any shares of, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for such capital stock, except for dividends or other distributions paid by a wholly owned Subsidiary that (i) Parent may issue shares of Parent to Common Stock upon exercise of Parent Stock Options outstanding on the date hereof or another wholly owned Subsidiary hereafter granted in accordance with the provisions of Parent, declare, set aside, make subclause (ii) or pay any dividend (iii) of this clause (b) or other distribution (whether payable B) in cash, stock, property or a combination thereof) accordance with respect to any of its capital stock or other Equity Interests; or
(c) authorize or enter into any Contract or otherwise make any commitment to do any the terms of the foregoing. Except Parent Rights Agreement as otherwise expressly provided hereinin effect on the date hereof, nothing contained (ii) Parent may grant Parent Stock Options to purchase up to an aggregate of 75,000 shares of Parent Common Stock and 75,000 shares of restricted stock in this Agreement is intended to give accordance with the Companyterms of the Parent Stock Plans consistent with past practice and with an exercise price per share of Parent Common Stock no less than the fair market value of a share of Parent Common Stock on the date of grant, directly or indirectly, the right to control or direct (iii) in connection with Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Timeannual year-end equity awards consistent with past practice, Parent shall exercisemay grant Parent Stock Options and restricted stock in accordance with the terms of the Parent Stock Plans consistent with past practice and, in respect of Parent Stock Options, with an exercise price per share of Parent Common Stock no less than the fair market value of a share of Parent Common Stock on the date of grant, (iv) Parent may grant Parent Stock Options pursuant to existing contractual relationships as set forth in Section 5.02(b) of the Parent Disclosure Letter, (v) Parent may issue one or more series of securities of Parent in connection with a Financing consistent with the terms and conditions of this Agreement, complete control the primary use of proceeds of which is to pay the Cash Merger Consideration, and supervision over (vi) transactions exclusively among Parent and its Subsidiaries shall be permitted;
(c) except for transactions exclusively among Parent and its Subsidiaries, (i) issue any debt securities, incur, guarantee or otherwise become contingently liable with respect to any indebtedness for borrowed money, or enter into any arrangement having the economic effect of any of the foregoing (other than (A) in connection with accounts payable in the ordinary course of business, (B) borrowings under the existing credit facilities of Parent or any of its Subsidiaries, and (C) the issuance of one or more series of securities of Parent or the incurrence of indebtedness by Parent in connection with a Financing consistent with the terms and conditions of this Agreement, the primary use of proceeds of which is to pay the Cash Merger Consideration), (ii) make any loans, advances or capital contributions to, or investments in, any Person, other than loans, advances, capital contributions or investments that are not, in the aggregate, in excess of $25,000,000, (iii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock other than in connection with the exercise of outstanding Parent Stock Options pursuant to the terms of the Parent Stock Plans and the relevant written agreements evidencing the grant of Parent Stock Options, (iv) make any material acquisition of any assets or businesses (including by merger, consolidation, acquisition of stock or assets, in-bound license transactions or otherwise) other than acquisitions the fair market value of the total consideration (including license, royalty or other fees) for which does not exceed, in the aggregate, $25,000,000 (provided that any such acquisition does not materially and adversely affect the ability of Parent and the Company to obtain applicable approvals under the Antitrust Laws); or (v) sell, pledge, assign, dispose of, transfer, lease, securitize or materially encumber any businesses or assets (other than Parent Owned Intellectual Property or Parent Licensed Intellectual Property) that are material to Parent and its Subsidiaries, taken as a whole, other than (A) sales of inventory and other assets in the ordinary course of business, (B) sales or dispositions of assets in one or a series of transactions having an aggregate value of $25,000,000 or less, and (C) divestitures pursuant to Section 5.11;
(d) (i) sell, pledge, assign, dispose of, transfer, securitize, lease or materially encumber any material Parent Owned Intellectual Property or material Parent Licensed Intellectual Property (except in connection with any Contract or arrangement related to obtaining Financing that is consistent with the terms and conditions of this Agreement, the primary use of proceeds of which is to pay the Cash Merger Consideration), or (ii) except in the ordinary course of business, as reasonably prudent to the conduct of the business or as provided for in Parent Material Contracts in effect as of the date hereof, (A) exclusively license, abandon or fail to maintain any material Parent Owned Intellectual Property or material Parent Licensed Intellectual Property, (B) grant, extend, amend (except as required in the diligent prosecution of the material Parent Owned Intellectual Property), waive or modify any rights in or to any material Parent Owned Intellectual Property or material Parent Licensed Intellectual Property, (C) fail to diligently prosecute Parent’s and its Subsidiaries’ material patent applications, or (D) fail to exercise a right of renewal or extension under any Parent Material License;
(e) (i) enter into any Contract or arrangement that materially limits or otherwise materially restricts Parent or any of its Subsidiaries or any of their respective operationsaffiliates or any successor thereto from engaging or competing in any line of business or in any geographic area, or (ii) make any capital expenditure or expenditures, including leases and in-bound licenses (other than capital expenditures that are not, in the aggregate, in excess of $10,000,000 and (B) capital expenditures for unbudgeted repairs and maintenance in the ordinary course of business consistent with past practice);
(f) except in the ordinary course of business, make any material Tax election or settle or compromise any material Tax liability or refund, or change any annual Tax accounting period or material method of Tax accounting, file any material amendment to a Tax Return, enter into any closing agreement relating to any material Tax, surrender any right to claim a material Tax refund, or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment, in each case, other than as required by Law;
(g) take, or agree to take, any action that would prevent the Merger from qualifying as a reorganization with the meaning of Section 368(a) of the Code;
(h) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration, except in the ordinary course of business;
(i) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which Parent is a party and which relates to a business combination or other similar extraordinary transaction;
(j) take any action to render inapplicable, or to exempt any third Person from, (i) the provisions of Section 203 of the DGCL, or (ii) any other state takeover or similar Law or state Law that purports to limit or restrict business combinations or the ability to acquire or vote shares;
(k) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger in Article VI not being satisfied; or
(l) agree, authorize or otherwise to take any of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Inamed Corp)
Conduct of Business by Parent Pending the Closing. Between Parent agrees that, during the date of this Agreement and the earlier Interim Period, except as set forth in Section 5.2 of the Effective Time and the termination of this Agreement in accordance with Article 7, except (1) for any Permitted Action, (2) Parent Disclosure Letter or as specifically permitted or required by Law or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated by any other provision of this Agreement, or (5) with the prior written consent of the unless Company (not to be unreasonably withheld, conditioned or delayed)shall otherwise agree in writing, Parent will, and will cause each of its Subsidiaries to, (ia) to conduct its operations in all material respects only in the ordinary and usual course of business, business consistent with past practice and (iib) to use commercially reasonable efforts to keep available the services of the current officers, employees officers and consultants Key Employees of Parent and each of its Subsidiaries and to preserve the goodwill and current relationships of Parent and each of its Subsidiaries with such of the customers, suppliers and other Persons persons with which Parent or any of its Subsidiaries has significant business relationsrelations as is reasonably necessary to preserve substantially intact its business organization. Without limiting the foregoing, except (w) for any Permitted Action, (x) Except as specifically permitted or required by Law or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated by any other provision of this Agreement, Parent shall not, and shall not permit (unless required by applicable Law or any of its Subsidiaries toNASDAQ regulations applicable to the Parent), between the date of this the Initial Merger Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7Time, directly or indirectly, take do, or agree to do, any of the following actions following, without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed):Company:
(a) amend or otherwise change the its certificate of incorporation and bylaws or by-laws or equivalent organizational documents;
(b) (i) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock of, or other Capital Securities in, Parent or any of its Subsidiaries (whether by merger, consolidation or otherwise) of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Capital Securities, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Capital Securities or such convertible or exchangeable securities, or any other organizational documents ownership interest (including, without limitation, any such interest represented by contract right), of the Parent or any of its Subsidiaries;
, other than the issuance of additional (bA) except for dividends or other distributions paid by a wholly owned Subsidiary of Parent options granted to Parent or another wholly owned Subsidiary non-executive employees pursuant to any equity incentive plan of Parent, or any other plan, agreement, or arrangement of Parent in existence on the date of the Initial Merger Agreement (the "Parent Stock Option Plans") in a manner consistent with past practice, (B) warrants to purchase shares of Parent Common Stock contemplated by agreements existing as of the date of the Initial Merger Agreement, and (C) shares of Parent Common Stock issuable upon the exercise of options to purchase Parent Common Stock and/or warrants to purchase shares of capital stock of Parent outstanding as of the date of the Initial Merger Agreement in accordance with their terms, (ii) except as set forth in Section 5.2 of the Parent Disclosure Letter accelerate, amend or change the period of exercisability of options or other equity incentive awards granted under any Parent Stock Plan or authorize cash payments in exchange for any options or other equity incentive award granted under any Parent Stock Plan; or (iii) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any property or assets (including Intellectual Property) of the Parent or any of its Subsidiaries, including through merger, consolidation or otherwise, with a value in excess of $100,000, except pursuant to existing contracts or commitments or the sale or purchase of goods or services in the ordinary course of business consistent with past practice.
(c) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than (i) dividends paid by a wholly owned Subsidiary of the Parent to the Parent or to any other wholly owned Subsidiary of the Parent, (ii) issuance of additional warrants to purchase shares of Parent Common Stock contemplated by agreements existing as of the date of the Initial Merger Agreement or (iii) to effect a reverse stock split upon the determination of the Parent Board to do so) or enter into any agreement with respect to the voting of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Capital Securities or other Equity Interestssecurities (other than to effect a reverse stock split upon the determination of the Parent Board to do so);
(i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than a wholly owned Subsidiary of Parent) for borrowed money, except to the extent that the aggregate indebtedness for borrowed money of Parent and its Subsidiaries at any time outstanding does not exceed $26,500,000; (iii) refinance or otherwise replace the Existing Parent Indebtedness except in connection with the Parent Financing or with the consent of the Company, which consent shall not be unreasonably withheld, (iv) terminate, cancel or request any material change in, or agree to any material change in, any contract that is reasonably necessary for the conduct of Parent's business as it is currently conducted other than in the ordinary course of business consistent with past practice; (v) make or authorize any capital expenditure in excess of the Parent 2005 Budget, other than capital expenditures that are not individually in excess of $60,000, or in the aggregate in excess of $200,000 per month, in the aggregate, for the Parent and its Subsidiaries taken as a whole; or (vi) with respect to clauses (i) and (ii) above, enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.2.5;
(f) except as disclosed in Section 5.2 of the Parent Disclosure Letter: (i) increase the compensation or benefits payable or to become payable to its directors, officers, employees or consultants except in connection with annual adjustments consistent with past practices; (ii) grant any rights to severance or termination pay to, or enter into any agreement to provide severance benefits with, any director, officer or other employee or consultant of the Parent or any of its Subsidiaries, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, employee or consultant, except as required by applicable Law; or (iii) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Employee Plans.
(g) (i) pre-pay any long-term debt in an amount not to exceed $100,000 in the aggregate for the Parent and its Subsidiaries taken as a whole, or pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except for borrowings under revolving credit lines existing as of the date of the Initial Merger Agreement in the ordinary course of business consistent with past practice and in accordance with their terms, (ii) fail to collect notes or accounts receivable in the ordinary course of business consistent with past practice or enter into a factoring or discounting arrangement with a third party with respect to accounts receivable, (iii) fail to pay any account payable in the ordinary course of business consistent with past practice or (iv) vary the Parent's inventory practices in any material respect from the Parent's past practices;
(h) make any change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Authority;
(i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration;
(j) file any amended Tax Return, make any Tax election or enter into any agreement in respect of Taxes, including the settlement of any Tax controversy, claim or assessment, adopt or change of any accounting method in respect of Taxes, or surrender any right to claim a refund of Taxes if such action would have the effect of increasing by a material amount the present or future Tax liability of the Parent or any of its Subsidiaries, or would give rise to a Tax lien (other than statutory Liens for current Taxes not yet due) on any of the Parent's or its Subsidiaries' assets;
(k) take, or agree to take, any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code;
(l) adopt or implement any stockholder rights plan;
(m) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which the Parent is a party;
(n) write up, write down or write off the book value of any assets, individually or in the aggregate, for the Parent and its Subsidiaries taken as a whole, except for depreciation and amortization and any write-down of goodwill in accordance with GAAP consistently applied and any write-offs of inventory or accounts receivable that do not exceed $50,000 individually or $300,000 in the aggregate.
(o) take any action to exempt the Parent from (i) the provisions of Section 203 of the DGCL, or (ii) any other state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares any person or entity (other than the Company or any of Company's Subsidiaries) or any action taken thereby, which person, entity or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom;
(p) open or close, or enter into an agreement to open or close, any facility or office except as disclosed in Section 5.2 of the Parent Disclosure Letter;
(q) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article 6 not being satisfied;
(r) fail to be in material compliance with the terms of instruments evidencing indebtedness incurred by the Parent, other than any such failure that is waived by the party to whom such indebtedness is owed within a reasonable time after the commencement of such material non-compliance and provided the Company with a copy of such waiver;
(s) allow any insurance policy relating to the Parent's business to lapse without obtaining replacement insurance coverage of comparable amount at similar cost;
(t) enter into any contract that contains any non-compete or exclusivity provisions with respect to any customer, line of business or geographic area with respect to the Parent, any of its Subsidiaries or any of the Parent's current or future affiliates, or which restricts the conduct with respect to any customer, of any line of business by the Parent, any of its Subsidiaries or any of the Parent's current or future affiliates or any geographic area in which the Parent, any of its Subsidiaries or any of the Parent's current or future affiliates may conduct business, or which otherwise restricts operation of the Parent's business, in each case in any material respect, in each case other than non-compete agreements signed by employees incident to their employment by the Parent or any of its Subsidiaries;
(u) take any formal action or grant any consent or approval concerning any joint venture outside the ordinary course of business consistent with past practice; or
(cv) authorize or enter into any Contract agreement or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided herein, nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Digital Generation Systems Inc)
Conduct of Business by Parent Pending the Closing. Between Parent agrees that, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7Time, except (1) for any Permitted Action, (2) as required by Law set forth in Section 5.1 of Parent Disclosure Schedule or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated specifically permitted by any other provision of this Agreement, or (5) with the prior written consent unless authorized and approved in writing by three-fourths of the Company (not to be unreasonably withheld, conditioned or delayed)members of the Operating Committee, Parent will, and will cause each of its Subsidiaries (i) to conduct its operations in all material respects only in the ordinary and usual course of business, and (ii) to use commercially reasonable efforts to keep available the services of the current officers, employees and consultants of Parent and each of its Subsidiaries and to preserve the goodwill and current relationships of Parent and each of its Subsidiaries business consistent with customers, suppliers and other Persons with which Parent or any of its Subsidiaries has significant business relationspast practice. Without limiting the foregoing, and as an extension thereof, except (w) for any Permitted Action, (x) as required by Law set forth in Section 5.1 of Parent Disclosure Schedule or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated specifically permitted by any other provision of this Agreement, Parent shall notnot (unless required by applicable Law), and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7Time, directly or indirectly, take do, or agree to do, any of the following actions without the prior written consent unless authorized and approved in writing by three-fourths of the Company (not to be unreasonably withheld, conditioned or delayed):members of the Operating Committee:
(a) amend or otherwise change the its certificate of incorporation and bylaws or by-laws or equivalent organizational documents (except, as applicable, as contemplated by the Reverse Stock Split);
(b) (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock of, or other Equity Interests in, Parent or any of its Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other organizational documents ownership interest (including, without limitation, any such interest represented by contract right), of Parent or any of its Subsidiaries, other than (x) the issuance of Parent Common Stock upon the exercise of Parent Options outstanding as of the date hereof in accordance with their terms and (y) the grant of up to 100,000 Parent Options, or (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of Parent or any of its Subsidiaries, except pursuant to existing Contracts or commitments, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice;
(bc) except for dividends or other distributions paid by a wholly owned Subsidiary of Parent to Parent or another wholly owned Subsidiary of Parent, declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Subsidiary of Parent to Parent or to any other wholly-owned Subsidiary of Parent) or enter into any agreement with respect to the voting of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other Equity Interestssecurities (other than pursuant to the Reverse Stock Split or in connection with the termination of an employee pursuant to existing repurchase rights);
(e) (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice, (B) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than a wholly-owned Subsidiary of Parent) for borrowed money, (C) terminate, cancel or request any material change in, or agree to any material change in, any Parent Material Contract, or (D) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1(e);
(f) except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement as disclosed in Section 3.11(b) of Parent Disclosure Schedule: (A) increase the compensation or benefits payable or to become payable to its directors, officers or employees; (B) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of Parent or any of its Subsidiaries, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law; or (C) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Parent Benefit Plan;
(g) (A) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms, (B) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, or (C) delay or accelerate payment of any account payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice;
(h) make any change in accounting policies or procedures, except as required by GAAP or by a Governmental Entity;
(i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration;
(j) make any material tax election, settle or compromise any material liability for Taxes, amend any Tax Return or file any refund for Taxes;
(k) take, or agree to take, any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code;
(l) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which Parent is a party;
(m) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article VI not being satisfied; or
(cn) authorize or enter into any Contract agreement or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided herein, nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 1 contract
Sources: Merger Agreement (Corgentech Inc)
Conduct of Business by Parent Pending the Closing. Between Parent agrees that, during the date of this Agreement and the earlier Interim Period, except as set forth in Section 5.2 of the Effective Time and the termination of this Agreement in accordance with Article 7, except (1) for any Permitted Action, (2) Parent Diligence Letter or as specifically permitted or required by Law or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated by any other provision of this Agreement, or (5) with the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed)unless Target shall otherwise agree in writing, Parent will, and will cause each of its Subsidiaries (i) to Merger Sub to, conduct its operations in all material respects only in the ordinary and usual course of businessbusiness consistent with past practice, which shall include the raising of investment capital prior to the filing of the Registration Statement, and (ii) to use commercially reasonable efforts to keep available the services of the Parent’s and Merger Sub’s current officers, key officers and employees and consultants of Parent and each of its Subsidiaries and to preserve the goodwill and their current relationships with such of Parent and each of its Subsidiaries with those customers, suppliers and other Persons with which whom Parent or any of its Subsidiaries has significant business relationsrelationships as is reasonably necessary to preserve substantially intact the business organization and goodwill of Parent and Merger Sub. Without limiting the foregoing, and as an extension thereof, except (w) for any Permitted Action, (x) as set forth in Section 5.2 of the Parent Diligence Letter or as specifically permitted or required by Law or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated by any other provision of this Agreement, Parent shall not, and shall not permit (unless required by applicable Law or any of its Subsidiaries to, between the date of this Agreement and the earlier regulations of the Effective Time and NASD applicable to the termination of this Agreement in accordance with Article 7Parent), during the Interim Period, directly or indirectly, take do, or agree to do, any of the following actions without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed):Target:
(a) amend or otherwise change the certificate of incorporation and bylaws or any other organizational documents of Parent or any of its SubsidiariesGoverning Documents;
(b) except for dividends adopt or other distributions paid by a wholly owned Subsidiary of Parent implement any shareholder rights plan with respect to Parent or another wholly owned Subsidiary Merger Sub;
(c) change the composition or membership of the Parent Board, or remove from office (whether voluntary or involuntary) any officer of Parent or Merger Sub;
(d) (i) increase the compensation or benefits payable or to become payable to any director, officer, employee or consultant of Parent or Merger Sub, except for annual merit increases in the ordinary course of business consistent with past practice and increases resulting from the operation of compensation arrangements in effect prior to the date hereof; (ii) pay or accrue any bonus to any director, officer, employee or consultant of Parent or Merger Sub, except in accordance with past established practices therefor; (iii) grant any rights to severance or termination pay to, or enter into or amend any employment or severance agreement with, any director, officer or other employee or consultant of Parent or Merger Sub except to the extent such severance or termination pay is due before the Effective Time; or (iv) establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, employee or consultant of Parent or Merger Sub, except as required by applicable Law.
(e) issue, sell, pledge, dispose of, grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any Parent Capital Securities (whether by merger, consolidation or otherwise), or any securities convertible or exchangeable or exercisable for any Parent Capital Securities, or any options, warrants or other rights of any kind to acquire any Parent Capital Securities or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any such interest represented by contract right), of Parent, except in accordance with the contemplated transactions described in Section 5.2(e) of the Parent Diligence Letter;
(f) sell, lease, license, exchange, grant, mortgage, pledge, guarantee, transfer, encumber or otherwise dispose of, or agree to or authorize the sale, lease, license, exchange, grant, mortgage, pledge, guarantee, transfer, encumbrance or disposition of, any of its assets or properties with a value in excess of $5,000 (whether by merger, consolidation or otherwise), except for (i) dispositions of assets, goods, services or inventories in the ordinary course of business and consistent with past practice; (ii) the sale of unused or obsolete equipment; or (iii) pursuant to existing contracts or commitments;
(g) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any Parent Capital Securities or enter into any agreement with respect to the voting of any Parent Capital Securities;
(h) (i) redeem, purchase or otherwise acquire, or agree to redeem, purchase or otherwise acquire, any Parent Capital Securities or any securities or obligations convertible into or exchangeable for any Parent Capital Securities, or any options, warrants or conversion or other rights (including any stock appreciation rights, phantom stock or similar rights) to acquire any Parent Capital Securities or any such securities or obligations; (ii) adopt a plan with respect to or effect any liquidation, dissolution, restructuring, reorganization or recapitalization; or (iii) split, subdivide, combine or reclassify any shares of Parent Capital Securities or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of Parent Capital Securities;
(i) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets or properties of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or properties of any other Person, including without limitation any rigs, compressors, pump jacks or other capital equipment regularly used in connection with any drilling operations (other than the purchase of assets or properties that are not individually in excess of $5,000, or in the aggregate in excess of $20,000 per month, for the Parent and Merger Sub taken as a whole, from suppliers or vendors in the ordinary course of business and consistent with past practice);
(j) (i) incur any indebtedness for borrowed money or purchase money indebtedness (including as a guarantor or surety), issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person (other than Merger Sub) for borrowed money, except to the extent that the aggregate indebtedness for borrowed money of Parent and Merger Sub at any time outstanding does not exceed $5,000; (ii) refinance or otherwise replace any of its existing indebtedness, except with the consent of Target, which consent shall not be unreasonably withheld; (iii) make or incur any capital stock expenditure in excess of $5,000 individually, or in the aggregate in excess of $20,000 per month, for the Parent and Merger Sub taken as a whole, except in the ordinary course of business consistent with past practice; or (iv) make any loan or advance to any Parent Shareholder or any director, officer, employee or consultant of Parent or Merger Sub;
(k) (i) pre-pay any long-term debt in an amount exceeding $5,000 in the aggregate for Parent and Merger Sub taken as a whole, or pay, discharge or satisfy any Liabilities, except for borrowings under revolving credit lines existing as of the date hereof in the ordinary course of business consistent with past practice and in accordance with their terms; (ii) fail to collect notes or accounts receivable in the ordinary course of business consistent with past practice or enter into a factoring or discounting arrangement with a third party with respect to accounts receivable; or (iii) fail to pay any account payable in the ordinary course of business consistent with past practice;
(l) terminate, cancel or request any material change in, or agree to any material change in, any contract that is reasonably necessary for the conduct of Parent’s business as it is currently conducted other than in the ordinary course of business consistent with past practice;
(m) commit to participate in the drilling of any new well in a new prospect or elect to become a non-consenting party with respect to any operation or capital expenditure proposed by a third Person;
(n) enter into any Hydrocarbon sales, exchange, processing or transportation contract with respect to any of Parent’s assets or properties having a term in excess of one year that is not terminable without penalty upon notice of 30 days or less;
(o) file any amended Tax Return, make any Tax election or enter into any agreement in respect of Taxes, including without limitation the settlement of any Tax controversy, claim or assessment, or adopt or change any accounting method in respect of Taxes, or surrender any right to claim a refund of Taxes, if such action would have the effect of increasing by a material amount the present or future Tax Liability of Parent, Merger Sub or the Surviving Corporation, or would give rise to a Tax lien (other than statutory Liens for current Taxes not yet due) on any of Parent’s, Merger Sub’s or the Surviving Corporation’s assets or properties;
(p) write up, write down or write off the book value of any assets, individually or in the aggregate, of Parent and Merger Sub taken as a whole, except for depreciation and amortization and any write-down of goodwill in accordance with GAAP and any write-offs of inventory or accounts receivable that do not exceed $5,000 individually or $20,000 in the aggregate.
(q) take any action to exempt Parent or Merger Sub from the provisions of any state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares of any Person (other than Target) or any action taken thereby, which Person or action would have otherwise been subject to the restrictive provisions thereof and not exempt therefrom;
(r) open or close, or enter into an agreement to open or close, any facility or office;
(s) fail to be in material compliance with the terms of any instrument evidencing indebtedness incurred by Parent, other than any such failure that is waived in writing by the party to whom such indebtedness is owed within a reasonable time after the commencement of such material non-compliance, and provided Target receives a copy of such waiver within a reasonable time thereafter;
(t) enter into any agreement or arrangement outside the ordinary course of business consistent with past practice that contains any non-compete or exclusivity provisions with respect to any customer, line of business or geographic area with respect to Parent, Merger Sub or any of Parent’s or the Surviving Corporation’s current or future Affiliates, or that limits or otherwise restricts Parent or Merger Sub prior to the Effective Time, or that would, at or after the Effective Time, limit or restrict Parent or the Surviving Corporation, from engaging in any business in the United States, or that restricts the conduct with respect to any customer of any line of business by Parent, Merger Sub or any of Parent’s or the Surviving Corporation’s current or future Affiliates, or any geographic area in which Parent, Merger Sub or any of Parent’s or the Surviving Corporation’s current or future Affiliates may conduct business, or that otherwise restricts the operation of Parent’s business, in each case other than non-compete agreements signed by employees incident to their employment by Parent or Merger Sub;
(u) take any formal action or grant any consent or approval concerning any joint venture outside the ordinary course of business consistent with past practice;
(v) take, or agree to take, any action that would prevent the Merger from qualifying as a tax-free reorganization within the meaning of Section 368(a)(2)(E) of the Code;
(w) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to, or grant any consent under, any existing standstill provision relating to a Parent Acquisition Proposal, or under any similar confidentiality or other Equity Interestsagreement, or fail to fully enforce any such agreement;
(x) change any of its methods, principles or practices of accounting or internal controls in effect as of the date hereof, other than in the ordinary course of business consistent with past practice or as required by applicable Law, GAAP or any Governmental Authority;
(y) waive, release, assign, settle or compromise any material claims, or any material Litigation or arbitration, if such waiver, release, assignment, settlement or compromise would require any material payment by the Surviving Corporation at or after the Effective Time;
(z) take any action or fail to take any action that is intended or would reasonably be expected to result in a Parent Material Adverse Effect, the breach of a representation or warranty, a breach of a covenant or agreement, or a failure of a condition to Closing in this Agreement;
(aa) accelerate, amend or change the period of exercisability of options or other equity incentive awards granted under any Parent Stock Option Plan or authorize cash payments in exchange for any options or other equity incentive award granted under any Parent Stock Option Plan; or
(cbb) authorize or enter into any Contract agreement or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided herein, nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 1 contract
Sources: Merger Agreement (TBX Resources Inc)
Conduct of Business by Parent Pending the Closing. Between Parent agrees that, between the date of this Agreement Date and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7pursuant to its terms or the Effective Time, except (1) for any Permitted Action, (2) as required by Law set forth in Section 5.1 of the Parent Disclosure Schedule or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated specifically permitted by any other provision of this Agreement, or (5) with unless previously approved in writing by the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed)Company, Parent will, and will cause each of its Subsidiaries (i) to conduct its operations in all material respects only in the ordinary and usual course of business, and (ii) to use commercially reasonable efforts to keep available the services of the current officers, employees and consultants of Parent and each of its Subsidiaries and to preserve the goodwill and current relationships of Parent and each of its Subsidiaries business consistent with customers, suppliers and other Persons with which Parent or any of its Subsidiaries has significant business relationspast practice. Without limiting the foregoing, and as an extension thereof, except (w) for any Permitted Action, (x) as required by Law set forth in Section 5.1 of the Parent Disclosure Schedule or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated specifically permitted by any other provision of this Agreement, Parent shall notnot (unless required by applicable Law), and shall not permit any of its Subsidiaries to, between the date of this Agreement Date and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7pursuant to its terms or the Effective Time, directly or indirectly, take do, or agree to do, any of the following actions without unless previously approved in writing by the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed):Company:
(a) amend or otherwise change the its certificate of incorporation and bylaws or by-laws or equivalent organizational documents;
(b) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any other organizational documents material property or assets (including Intellectual Property) of Parent or any of its Subsidiaries, except pursuant to existing Contracts or commitments, or enter into any commitment or transaction outside the ordinary course of business consistent with past practice;
(bc) except for dividends or other distributions paid by a wholly owned Subsidiary of Parent to Parent or another wholly owned Subsidiary of Parent, declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Subsidiary of Parent to Parent or to any other wholly-owned Subsidiary of Parent) or enter into any agreement with respect to the voting of its capital stock or grant any Parent Options;
(d) issue, grant, sell, reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other Equity Interestssecurities (other than in connection with the termination of an employee pursuant to existing repurchase rights or the exercise any currently outstanding options or warrants);
(e) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice;
(f) except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the Agreement Date as disclosed in Section 3.11(b) of Parent Disclosure Schedule: (A) increase the compensation or benefits payable or to become payable to its directors, officers or employees; (B) grant or modify any rights to severance change-in-control or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of Parent or any of its Subsidiaries, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law; or (C) take any affirmative action to amend or waive any performance or vesting criteria, accelerate vesting, exercisability or funding or exercise any discretion under any Parent Benefit Plan;
(g) (A) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice, (B) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, or (C) delay or accelerate payment of any account payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice;
(h) make any change in accounting policies or procedures, except as required by GAAP or by a Governmental Entity;
(i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration;
(j) change its method of accounting, make any material tax election, settle or compromise any material liability for Taxes, amend any material Tax Return or file any refund for a material amount of Taxes;
(k) take, or agree to take, any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code;
(l) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which Parent is a party;
(m) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article VI not being satisfied except to the extent contemplated by, and in accordance with, Section 5.5 of this Agreement; or
(cn) authorize or enter into any Contract agreement or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided herein, nothing contained in this Agreement is intended to give Notwithstanding the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Timeforegoing, Parent shall exercise, consistent be able to issue and sell additional shares of Parent Common Stock as well as pay costs and fees associated with raising equity prior to Closing in order to comply with the terms and conditions requirements of Section 6.3(e) of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 1 contract
Conduct of Business by Parent Pending the Closing. Between Parent agrees that, between the date of this Agreement and the earlier Effective Time, except as set forth in Section 5.2 of the Effective Time and the termination of this Agreement in accordance with Article 7, except (1) for any Permitted Action, (2) Parent Disclosure Schedule or as required by Law or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated specifically permitted by any other provision of this Agreement, or (5) with the prior written consent of unless the Company (not to be unreasonably withheld, conditioned or delayed)shall otherwise agree in writing, Parent will, and will cause each of its Subsidiaries (i) to to, conduct its operations in all material respects only in the ordinary and usual course of business, and (ii) to use commercially reasonable efforts to keep available the services of the current officers, employees and consultants of Parent and each of its Subsidiaries and to preserve the goodwill and current relationships of Parent and each of its Subsidiaries business consistent with customers, suppliers and other Persons with which Parent or any of its Subsidiaries has significant business relationspast practice. Without limiting the foregoing, and as an extension thereof, except (w) for any Permitted Action, (x) as required by Law set forth in Section 5.2 of the Parent Disclosure Schedule or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated specifically permitted by any other provision of this Agreement, Parent shall notnot (unless required by applicable Law), and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7Time, directly or indirectly, take do, or agree to do, any of the following actions without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed):Stockholder:
(a) amend (i) issue, sell, pledge, dispose of, grant, transfer, encumber, or otherwise change authorize the certificate issuance, sale, pledge, disposition, grant, transfer, or encumbrance of incorporation and bylaws any shares of capital stock of, or other Equity Interests in, Parent or any of its Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other organizational documents ownership interest (including, without limitation, any such interest represented by contract right), of Parent or any of its Subsidiaries, other than the issuance of Parent Common Stock upon the exercise of Parent Options outstanding as of the date hereof in accordance with their terms, (ii) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of Parent or any of its Subsidiaries, except pursuant to existing Contracts or commitments or the sale or purchase of goods in the ordinary course of business consistent with past practice, or (iii) enter into any commitment or transaction outside the ordinary course of business consistent with past practice;
(b) except for dividends or other distributions paid by a wholly owned Subsidiary of Parent to Parent or another wholly owned Subsidiary of Parent, declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly owned Subsidiary of Parent to Parent or to any other wholly owned Subsidiary of Parent) or enter into any agreement with respect to the voting of its capital stock;
(c) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other Equity Interestssecurities;
(d) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice, (ii) incur any Funded Debt or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than a wholly owned Subsidiary of Parent) for borrowed money, except for indebtedness for borrowed money incurred in the ordinary course of business consistent with past practice, (iii) terminate, cancel or request any material change in, or agree to any material change in, any Parent Material Contract, or (iv) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.2(d);
(e) except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the date of this Agreement as disclosed in Section 4.11(b) of the Parent Disclosure Schedule: (i) increase the compensation or benefits payable or to become payable to its directors, officers or employees; (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of Parent or any of its Subsidiaries, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law; or (iii) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Parent Benefit Plan;
(f) (i) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms, (ii) accelerate or delay collection of any material notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, or (iii) delay or accelerate payment of any material account payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice;
(g) make any change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Entity;
(h) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration;
(i) except as required by applicable Law, make or change any material Tax election, settle or compromise any claim, notice, audit report or assessment in respect of material Taxes, change any annual Tax accounting period; adopt or change any method of Tax accounting, file any amended material Tax Return, enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any material Tax, surrender any right to claim a material Tax refund, or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(j) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which Parent is a party;
(k) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article VI not being satisfied; or
(cl) authorize or enter into any Contract agreement or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided herein, nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Appears in 1 contract
Conduct of Business by Parent Pending the Closing. Between Except for matters set forth in Section 6.02 of the Parent Disclosure Letter or otherwise expressly permitted or contemplated by this Agreement (or as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), from the date of this Agreement and the earlier of to the Effective Time and the termination of this Agreement in accordance with Article 7, except (1) for any Permitted Action, (2) as required by Law or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated by any other provision of this Agreement, or (5) with the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed)Time, Parent willshall, and will shall cause each of its Subsidiaries (i) to to, conduct its operations in all material respects business in the ordinary course of businessbusiness consistent with past practice. In addition, and (ii) to use commercially reasonable efforts to keep available without limiting the services generality of the current officers, employees and consultants of Parent and each of its Subsidiaries and to preserve the goodwill and current relationships of Parent and each of its Subsidiaries with customers, suppliers and other Persons with which Parent or any of its Subsidiaries has significant business relations. Without limiting the foregoing, except (w) for any Permitted Action, (x) as required by Law matters set forth in Section 6.02 of the Parent Disclosure Letter or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated permitted by any other provision of this Agreement, from the date of this Agreement to the Effective Time, Parent shall notnot (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent), and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, directly or indirectly, take do any of the following actions without the prior written consent of the Company (Company, which consent shall not to be unreasonably withheld, conditioned withheld or delayed)::
(a) (i) amend or otherwise change the propose to amend Parent's certificate of incorporation and or bylaws or similar governing documents, (ii) declare, set aside or pay any dividend or distribution payable in cash or otherwise (other organizational documents than (A) stock dividends or distributions for which an appropriate adjustment is effected pursuant to Section 1.01(g) or 3.01(e), (B) quarterly cash dividends paid to stockholders of Parent in amounts consistent with past practice and (C) the payment of dividends or distributions to Parent or any of its Subsidiaries;
(b) except for dividends or other distributions paid Subsidiaries by a wholly owned Subsidiary of Parent to Parent or another wholly owned Subsidiary of Parent), declareor (iii) redeem, set asidepurchase, make acquire or pay offer to purchase or acquire any dividend shares of its capital stock or other distribution (whether payable in cashany options, stock, property warrants or a combination thereof) with respect rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, or (iv) merge or consolidate with any Person or acquire any material business of any Person (other Equity Intereststhan a merger, consolidation or acquisition among wholly-owned Subsidiaries of the Company or a merger consolidation or acquisition involving solely the Company and its wholly-owned Subsidiaries), in each case with respect to this clause (iv), if such action would be reasonably likely to delay the consummation of the Offer;
(b) take any action or omit to take any action that is intended or would reasonably be expected to result in any of the conditions to the Offer set forth in Annex A or the conditions to the Merger in Article VII not being satisfied;
(c) take any action that would result in a failure to maintain the trading of the Parent Stock on the NYSE; or
(cd) agree, authorize or enter into any Contract or otherwise make any commitment to do take any of the foregoing actions. Notwithstanding the foregoing. Except as otherwise expressly provided herein, nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercisebe entitled to (a) repurchase, consistent with retire or refinance outstanding indebtedness or debt securities and (b) enter into negotiations, discussions and Contracts relating to, and may consummate, acquisitions of other Persons (regardless of whether accomplished through a merger, stock purchase, asset purchase, recapitalization or other transaction, and regardless of the terms method or source of financing for such acquisition), so long as (i) the fair market value of the total consideration (including license, royalty or other fees) does not exceed $500,000,000 individually, (ii) Parent does not issue in excess of 20% of the then outstanding Parent Stock as consideration in any such transaction and conditions (iii) the negotiation or consummation of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operationsany such acquisition is not reasonably likely to materially delay or prevent the completion of the Offer or the Merger.
Appears in 1 contract
Sources: Merger Agreement (Inamed Corp)
Conduct of Business by Parent Pending the Closing. Between Parent agrees that, between the date of this Agreement Date and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7pursuant to its terms or the Effective Time, except (1) for any Permitted Action, (2) as required by Law set forth in Section 6.1 of the Parent Disclosure Schedule or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly contemplated specifically permitted by any other provision of this Agreement, or (5) with unless authorized and previously approved in writing by the prior written consent majority of the Company (not to be unreasonably withheld, conditioned or delayed)members of the Operating Committee, Parent will, and will cause each of its Subsidiaries (i) to conduct its operations in all material respects only in the ordinary and usual course of business, and (ii) to use commercially reasonable efforts to keep available the services of the current officers, employees and consultants of Parent and each of its Subsidiaries and to preserve the goodwill and current relationships of Parent and each of its Subsidiaries business consistent with customers, suppliers and other Persons with which Parent or any of its Subsidiaries has significant business relationspast practice. Without limiting the foregoing, and as an extension thereof, except (w) for any Permitted Action, (x) as required by Law set forth in Section 6.1 of the Parent Disclosure Schedule or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly contemplated specifically permitted by any other provision of this Agreement, Parent shall notnot (unless required by applicable Law), and shall not permit any of its Subsidiaries to, between the date of this Agreement Date and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7pursuant to its terms or the Effective Time, directly or indirectly, take do, or agree to do, any of the following actions without unless authorized and previously approved in writing by the prior written consent majority of the Company (not to be unreasonably withheld, conditioned or delayed):members of the Operating Committee:
(a) amend or otherwise change the its certificate of incorporation and bylaws or by-laws or equivalent organizational documents (except, as applicable, as contemplated by the Reverse Stock Split);
(b) (A) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of any shares of capital stock of, or other Equity Interests in, Parent or any of its Subsidiaries of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities, or any other organizational documents ownership interest (including, without limitation, any such interest represented by contract right), of Parent or any of its Subsidiaries, other than the (i) issuance of Parent Common Stock upon the exercise of Parent Options outstanding as of the date hereof in accordance with their terms or (ii) the grant of options at the Closing to such persons, on such terms and in such amounts as set forth in Section 6.1(b)(A)(ii) of the Parent Disclosure Schedule, or (B) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including, without limitation, Intellectual Property and Intellectual Property related to Parent’s Zingo and Adlea programs) of Parent or any of its Subsidiaries, except pursuant to existing Contracts or commitments;
(bc) except for dividends or other distributions paid by a wholly owned Subsidiary of Parent to Parent or another wholly owned Subsidiary of Parent, declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Subsidiary of Parent to Parent or to any other wholly-owned Subsidiary of Parent) or enter into any agreement with respect to the voting of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests or other Equity Interestssecurities (other than pursuant to the Reverse Stock Split or in connection with the termination of an employee pursuant to existing repurchase rights);
(e) (A) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice, (B) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than a wholly-owned Subsidiary of Parent) for borrowed money (other than ordinary course trade accounts payable, which shall not be material in the aggregate), (C) terminate, cancel or request any material change in, or agree to any material change in, any Parent Material Contract, or (D) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 6.1(e);
(f) (A) increase the compensation or benefits payable or to become payable to its directors, officers or employees; (B) grant or modify any rights to severance change-in-control or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of Parent or any of its Subsidiaries, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable Law; or (C) take any affirmative action to amend or waive any performance or vesting criteria, accelerate vesting, exercisability or funding or exercise any discretion under any Parent Benefit Plan;
(g) (A) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with their terms, provided that promptly following the Agreement Date, Parent shall agree upon a payment plan with respect to the subject matter of this Section 6.1(g) with the Operating Committee, (B) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice, or (C) delay or accelerate payment of any account payable in advance of its due date or the date such liability would have been paid in the ordinary course of business consistent with past practice;
(h) make any change in accounting policies or procedures, except as required by GAAP or by a Governmental Entity;
(i) waive, release, assign, settle or compromise any material claims, or any material litigation or arbitration;
(j) change its method of accounting, make any material tax election, settle or compromise any material liability for Taxes, amend any Tax Return or file any refund for Taxes;
(k) take, or agree to take, any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code;
(l) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which Parent is a party;
(m) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article VII not being satisfied; or
(cn) authorize or enter into any Contract agreement or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided hereinParent shall fully and promptly inform the Operating Committee of all discussions, nothing contained in this Agreement is intended negotiations or activities related to give the Companylicense, directly sale, or indirectlypotential license or sale, the right to control or direct Parent’s of any asset of Parent or its Subsidiaries’ operations prior to , and shall promptly provide the Effective Time. Prior to Operating Committee copies of any written materials (including materials in electronic form or otherwise) received from any third party in connection with any of the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operationsforegoing.
Appears in 1 contract
Sources: Merger Agreement (Anesiva, Inc.)
Conduct of Business by Parent Pending the Closing. Between Parent agrees that, between the date of this Agreement and the earlier Effective Time, except as set forth in Section 5.2 of the Effective Time and the termination of this Agreement in accordance with Article 7, except (1) for any Permitted Action, (2) Parent Disclosure Letter or as required by Law or Order, (3) for any action taken to comply with any COVID-19 Measures, (4) as otherwise expressly specifically contemplated by any other provision of this Agreement, or (5) with the prior written consent of unless the Company (not to be unreasonably withheld, conditioned or delayed)shall otherwise consent in writing, Parent willshall, and will shall cause each of Parent Subsidiary to, use its Subsidiaries (i) to conduct its operations in all material respects in the ordinary course of business, and (ii) to use commercially reasonable efforts to (x) maintain its existence in good standing under applicable Law, (y) subject to the restrictions set forth in this Section 5.2, conduct its operations only in the ordinary and usual course of business consistent with past practice and (z) keep available the services of the current officers, key employees and key consultants of Parent and each of its Subsidiaries Parent Subsidiary and to preserve the goodwill and current relationships of Parent and each of its the Parent Subsidiaries with their customers, suppliers and other Persons persons with which Parent or any of its Subsidiaries Parent Subsidiary has significant business relations, in each case as is reasonably necessary in order to preserve substantially intact its business organization. Without In addition, without limiting the foregoing, except (w) for any Permitted Action, (x) as required by Law set forth in Section 5.2 of the Parent Disclosure Letter or Order, (y) for any action taken to comply with any COVID-19 Measures or (z) as otherwise expressly specifically contemplated by any other provision of this Agreement, Parent shall not, not and shall not permit any of its Subsidiaries toto (unless required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to Parent and its Subsidiaries), between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7Time, directly or indirectly, take do, or agree to do, any of the following actions without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed):Company:
(a) amend or otherwise change the its certificate of incorporation and or bylaws or any other equivalent organizational documents of Parent or any of its Subsidiariesdocuments;
(b) except for dividends issue, sell, pledge, dispose of, grant, transfer or encumber any shares of capital stock of, or other distributions paid by a wholly owned Equity Interests in, Parent or any Parent Subsidiary of Parent any class, or other rights of any kind to acquire any shares of such capital stock or other Equity Interests of Parent or another wholly owned any Parent Subsidiary, except that Parent may issue shares of Parent Common Stock pursuant to Parent’s Employee Stock Purchase Plan or upon exercise of Parent Options and may grant Parent Options in the ordinary course of business consistent with past practice;
(c) (i) sell, pledge, dispose of, transfer, lease, license or encumber (other than pursuant to Permitted Liens) any material property or assets (other than Parent Intellectual Property) of Parent or any Parent Subsidiary, except (A) sales, pledges, dispositions, transfers, leases, licenses or encumbrances pursuant to and in accordance with the terms of existing Contracts, or (B) sales, pledges, dispositions, transfers, leases, licenses or encumbrances of property or assets by Parent or a Parent Subsidiary in the ordinary course of business; (ii) sell, pledge, dispose of, transfer, lease, license, abandon, fail to maintain or encumber any Parent Intellectual Property, except sales, pledges, dispositions, transfers, leases, licenses, abandonments, failures to maintain or encumbrances in the ordinary course of business which will not materially impair the conduct of Parent’s business; (iii) enter into any Contract or series of related Contracts, or any amendment or series of related amendments of one or more Contracts, outside of the ordinary course of business consistent with past practice and involving aggregate receipts, payments or expenses (direct, contingent or otherwise) in excess of $500,000 in any fiscal quarter; or (iv) enter into any material commitment or transaction outside the ordinary course of business consistent with past practice;
(d) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of the capital stock of Parent or enter into any agreement with respect to the voting of the capital stock of Parent;
(e) (i) reclassify, combine, split or subdivide any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its capital stock, or (ii) redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock, other Equity Interests; orInterests or other securities;
(cf) (i) incur any indebtedness for borrowed money (other than debt incurred in the ordinary course of business consistent with past practice) or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person (other than a wholly-owned Parent Subsidiary) for borrowed money, in each case except for indebtedness for borrowed money under Parent’s existing credit facilities or replacement credit facilities in an aggregate amount not larger than Parent’s existing credit facilities, (ii) terminate, cancel, or agree to any material and adverse change in, any Parent Material Contract, (iii) make or authorize any capital expenditure materially in excess of Parent’s budget as disclosed to the Company prior to the date hereof, (iv) make or authorize any material loan to any person (other than a Parent Subsidiary) outside the ordinary course of business and consistent with past practice or (v) enter into any agreement or arrangement that limits or otherwise restricts Parent or any of its Subsidiaries or any of their respective Affiliates or any successor thereto, or that could, after the Effective Time, limit or restrict the Surviving Corporation or any of its Affiliates or any successor thereto, from engaging or competing in any line of business or in any geographic area;
(g) except as may be required by contractual commitments with respect to severance or termination pay in existence on the date of this Agreement as disclosed in Section 4.8 of the Parent Disclosure Letter, (i) increase the compensation or benefits payable or to become payable to its directors, officers or employees (except for increases in accordance with past practices and methodologies in salaries or wages of officers and/or employees of Parent or any Parent Subsidiary), (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of Parent or any Parent Subsidiary (other than with respect to newly appointed directors and newly hired employees in accordance with past practices of Parent or any Parent Subsidiary, provided that any such agreements shall not provide for the payment of any severance or termination pay as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby), (iii) establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer, consultant or employee outside of the ordinary course of business consistent with past practice, except to the extent required by applicable Law, (iv) close any facility or engage in any mass layoff that could implicate the WARN Act, or (v) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Parent Benefit Plan or Parent Option;
(h) make any material change in accounting policies or procedures, other than in the ordinary course of business consistent with past practice or except as required by GAAP or by a Governmental Entity;
(i) except in the ordinary course of business consistent with past practice, make any material Tax election or settle or compromise any material Tax liability or refund, change any annual Tax accounting period or material method of Tax accounting, file any material amendment to a Tax Return, enter into any closing agreement relating to any material Tax, surrender any right to claim a material Tax refund or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(j) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or, except as necessary in connection with the exercise of Parent’s rights under Section 6.4, standstill agreement to which Parent is a party and which relates to a business combination involving Parent;
(k) write up, write down or write off the book value of any assets, individually or in the aggregate, for Parent and the Parent Subsidiaries taken as a whole, other than in the ordinary course of business or except as required by GAAP;
(l) except as necessary in connection with the exercise of Parent’s rights under Section 6.4, take any action to render inapplicable, or to exempt any third party from, any Takeover Law;
(m) acquire, or agree to acquire, from any person any assets (not including Intellectual Property), operations, business or securities or engage in, or agree to engage in, any merger, consolidation or other business combination with any person, except in connection with capital expenditures permitted hereunder and except for acquisitions of inventory and other assets (not including Intellectual Property) in the ordinary course of business or, which, individually or in the aggregate, would not be reasonably expected to result in the failure to satisfy, or material delay in satisfying any of the conditions to the Merger set forth in Article 7;
(n) take any action that is intended or would reasonably be expected to result in any of the conditions to the Merger set forth in Article 7 not being satisfied;
(o) acquire, or agree to acquire, from any person, any Intellectual Property, except in the ordinary course of business consistent with past practice (including in size and nature);
(p) except as necessary in connection with the exercise of Parent’s rights under Section 6.4, amend or otherwise change the Parent Rights Agreement;
(q) without the Company’s prior written consent, which consent shall not be unreasonably withheld, enter into any confidentiality or similar obligations which could prohibit Parent from providing or disclosing any agreement, contract or other arrangement to the Company;
(r) authorize or enter into any Contract agreement or otherwise make any commitment to do any of the foregoing. Except as otherwise expressly provided herein; or
(s) cause or permit to expire without renewal, nothing contained in this Agreement fail to renew or make any material modification to any material insurance policy to which Parent or any Parent Subsidiary is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operationsa party.
Appears in 1 contract