Conduct of Business by Parent. Except for matters set forth in the Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time Parent shall, and shall cause Sub to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time, Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of the Company: (i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock (in the case of Parent) or membership interests (in the case of Sub), (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) 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 (in the case of Parent) or membership interests (in the case of Sub), (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub; (ii) issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units; (iii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets; (A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan; (vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP; (vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets; (viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person; (ix) make or agree to make any new capital expenditure or expenditures; (x) make any Tax election or settle or compromise any Tax liability or refund; (xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party; (xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or (xiii) take, authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Millstream Acquisition Corp), Agreement and Plan of Merger (GRH Holdings, L.L.C.), Agreement and Plan of Merger (RGGPLS Holding, Inc.)
Conduct of Business by Parent. Except for matters set forth in Section 5.01(a) of the Parent Disclosure Letter or otherwise contemplated expressly permitted or expressly required by this Agreement or with the Transaction Agreementsprior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement to the Effective Time Time, Parent shall, and shall cause Sub each Parent Subsidiary to, use reasonable best efforts to (i) conduct its business in the usual, regular and ordinary course in substantially and (ii) preserve intact its business organization, goodwill and assets, to keep available the same manner as previously conductedservices of its current officers and preserve its existing relationships with Governmental Entities and its significant customers, suppliers, licensors, licensees, distributors, lessors and others having significant business dealings with Parent and the Parent Subsidiaries. In addition, and without limiting the generality of the foregoing, except as contemplated for matters set forth in Section 5.01(a) of the Parent Disclosure Letter or otherwise expressly permitted or expressly required by this Agreement or with the Transaction Agreementsprior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement to the Effective Time, Parent shall not, and shall cause each Parent Subsidiary not permit Sub to, do any of the following without the prior written consent of the Companyfollowing:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions distributions, whether in cash, stock or property or any combination thereof, in respect of, any of its capital stock (in the case of Parent) stock, voting securities or membership interests (in the case of Sub)other equity interests, other than dividends and distributions by a direct or indirect wholly owned Parent Subsidiary, (B) other than with respect to a wholly owned Parent Subsidiary, split, combine reverse split, combine, consolidate, subdivide or reclassify any of its capital stock (in the case of Parent) stock, voting securities or membership other equity interests, or securities convertible into or exchangeable or exercisable for any capital stock, voting securities or other equity interests (in the case of Sub) 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 (in the case of Parent) stock, voting securities or membership interests (in the case of Subother equity interests, other than as permitted by Section 5.01(a)(ii), or (C) purchaserepurchase, redeem or otherwise acquire acquire, or offer to repurchase, redeem or otherwise acquire, any shares of capital stock (in the case of Parent) or membership voting securities of, or other equity interests (in the case of Sub) in, Parent or any other securities thereof Parent Subsidiary or any rightssecurities of Parent or any Parent Subsidiary convertible into or exchangeable or exercisable for any capital stock or voting securities of, warrants or other equity interests in, Parent or any Parent Subsidiary, or any warrants, calls, options or other rights to acquire any such shares capital stock, voting securities or other securities or equity interests, other than (D1) adopt a plan the withholding of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization shares of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or Common Stock to satisfy tax obligations with respect to awards granted pursuant to the Parent Stock Plans and (2) the acquisition by Parent of awards granted pursuant to the Parent Stock Plans in any other fashion connection with the corporate structure or ownership forfeiture of Parent or Subsuch awards;
(ii) issue, deliver, sell sell, grant, pledge or grant otherwise encumber or subject to any Lien other than Permitted Liens (A) any shares of its capital stock of Parent or any Parent Subsidiary (other than, in the case of Parent) a wholly owned Parent Subsidiary, to Parent or any of its membership interests (in the case of Subanother wholly owned Parent Subsidiary), (B) any Voting Parent Debt other voting securities of or other voting securitiesequity interests in Parent or any Parent Subsidiary, (C) any securities convertible into or exchangeable foror exercisable for any capital stock or voting securities of, or other equity interests in, Parent or any optionsParent Subsidiary, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stockwarrants, “phantom” calls, options or other rights to acquire any capital stock rightsor voting securities of, or other equity interests in, Parent or any Parent Subsidiary, (E) any rights issued by Parent or any Parent Subsidiary that are linked in any way to the price of any class of Parent Capital Stock, or other equity interest in Parent, or any shares of capital stock appreciation rights of, or stock-based performance unitsother equity interest in, any Parent Subsidiary, the value of Parent, any Parent Subsidiary or any part of Parent or any Parent Subsidiary or any dividends or other distributions declared or paid on any shares of capital stock of, or other equity interest in, Parent or any Parent Subsidiary or (F) any Parent Voting Debt, in each case other than (1) issuances and sales of Parent Common Stock, securities convertible into or exchangeable or exercisable for Parent Common Stock, through any private or public registered offering, acquisition or other transaction, from time to time, of up to 7.5% in the aggregate for all such issuances and sales of the shares of Parent Common Stock issued and outstanding as of the date of this Agreement, (2) issuances of awards under the Parent Stock Plan in the ordinary course of business, (3) the issuance of shares of Parent Common Stock upon the lapse of any restrictions on any Parent Performance RSU Awards, in accordance with their terms, and (4) the issuance, delivery, sale, grant, pledge, encumbrance or subjecting to any Lien of any of the foregoing (A) through (F) of a Parent Subsidiary, in favor of or to Parent or a wholly owned Parent Subsidiary;
(iii) amend (whether by merger, consolidation or otherwise) the Parent CharterCharter (other than the Parent Charter Amendment), the Parent By-laws Bylaws, the Merger Sub Charter or the comparable organizational documents of SubMerger Sub Bylaws (other than ministerial changes);
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vi) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parentpractices, except insofar as may have been required by a change in GAAPGAAP or Law (after the date of this Agreement);
(v) directly or indirectly acquire or agree to acquire in any transaction (whether by means of merger, share exchange, consolidation, tender offer, asset purchase or otherwise) any equity interest in or business of any firm, corporation, partnership, company, limited liability company, trust, joint venture, association or other entity or division thereof or any properties or assets other than (A) the acquisition or lease of Oil and Gas Properties or other assets in the ordinary course of business consistent with past practice or (B) acquisitions of strategic investments as to which the aggregate amount of the consideration paid or transferred by Parent, Merger Sub and the Parent Subsidiaries in connection with all such transactions would not exceed $30,000,000;
(vi) directly or indirectly sell, lease, transfer, farmout, license, encumber with Liens (except for Permitted Liens and for Liens which do not, individually or in the aggregate, materially impair and would not reasonably be expected to materially impair the continued use and operation of the assets or properties to which they relate in the conduct of the business of Parent and each Parent Subsidiary as presently conducted), discontinue or otherwise dispose of, or agree to sell, lease, transfer, farmout, license, encumber with Liens (except for Permitted Liens and for Liens which do not, individually or in the aggregate, materially impair and would not reasonably be expected to materially impair the continued use and operation of the assets or properties to which they relate in the conduct of the business of Parent and each Parent Subsidiary as presently conducted), discontinue or otherwise dispose of, any portion of its assets or properties; other than (A) sales, leases or dispositions for which the consideration is less than $30,000,000 in the aggregate, (B) the sale of Hydrocarbons or CO2 in the ordinary course of business, or (C) the sale or other disposition of equipment that is surplus, obsolete or replaced in the ordinary course of business;
(vii) sell, lease (as lessor make any loans or lessee), license or otherwise dispose of or subject advances to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)Person, other than (xi) the payment, discharge or satisfaction of liabilities routine expense advances to its employees in the ordinary course of business consistent with past practice, (yii) liabilities for reasonable fees loans or advances in the form of trade credit granted to customers in the ordinary course of business, and expenses incurred by (iii) pursuant to customary provisions in joint operating agreements;
(viii) incur, create or assume any Indebtedness other than the incurrence, creation or assumption of any Indebtedness permitted under or that is in compliance with the Parent Indentures or the Parent Credit Agreement;
(ix) enter into any new line of business outside of its existing business;
(x) adopt a plan of complete or partial liquidation or dissolution;
(xi) take any actions or omit to take any actions that are reasonably likely to (A) result in any of the conditions set forth in Article VII not being satisfied, (B) result in new or additional required approvals from any Governmental Entity in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive prevent or materially impede, interfere with, hinder or delay the benefits ofconsummation of the Transactions, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a partyincluding the Merger;
(xii) after other than in the date hereof ordinary course of business consistent with past practice, (A) change any material method of Tax accounting, (B) make, change or rescind any material election relating to Taxes (including any election for any joint venture, partnership, limited liability company or other investment where Parent or any Parent Subsidiary has the authority to make such binding election in its discretion, but excluding any election that must be made periodically and is made consistent with past practice), or (C) settle or compromise any material audit, assessment, Tax claim or other controversy relating to Taxes for an amount materially in excess of the amount accrued or reserved with respect thereto on the financial statements of Parent included in the Filed Parent Reporting Documents;
(xiii) enter into or amend any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-KParent Related Party Transaction; or
(xiiixiv) takeenter into any Contract, authorize commitment or arrangement to do any of, or commit or agree to take any of, of the foregoing actionsforegoing.
Appears in 2 contracts
Sources: Merger Agreement (Penn Virginia Corp), Merger Agreement (Denbury Resources Inc)
Conduct of Business by Parent. Except for matters set forth in the Parent Disclosure Letter as required by applicable law or regulation and except as otherwise contemplated by this Agreement, until the Transaction Agreements, from earlier of the date termination of this Agreement to or the Effective Time Time, Parent shall, and shall cause Sub each of its subsidiaries to, conduct its business and their respective businesses in the usual, regular and ordinary course and consistent with past practices. Except as set forth in substantially Section 5.4 of the same manner Parent Disclosure Schedule, as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously conducted. In additionconsented to by the Company, and without limiting in writing, after the generality date hereof until the earlier of the foregoing, except as contemplated by the Transaction Agreements, from the date termination of this Agreement to or the Effective Time, Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of the Companyits subsidiaries to:
(ia) amend or otherwise change its certificate of incorporation or by-laws;
(Ab) declareissue, set aside or pay any dividends onsell, or make any other distributions in respect pledge, dispose of, any of its capital stock (in the case of Parent) or membership interests (in the case of Sub)encumber, (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) or issue or authorize the issuance issuance, sale, pledge, disposition, grant or encumbrance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock (in the case of Parent) or membership interests (in the case of Sub), (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliver, sell or grant (Ai) any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest, thereof, or (in the case of Parentii) or any of its membership interests (in the case of Sub)assets, (B) any Voting Parent Debt tangible or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance unitsintangible;
(iiic) amend the declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to its capital stock, other than from any subsidiary of Parent Charter, the to Parent By-laws or the comparable organizational documents to any other subsidiary of SubParent;
(ivd) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(i) acquire (including, without limitation, for cash or agree to acquire (A) shares of stock, by merging or consolidating withmerger, consolidation, or by purchasing acquisition of stock or assets) any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association partnership or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under investment either by purchase of stock or securities, contributions of capital or property transfer, or, except in the ordinary course of business, consistent with past practice, purchase any collective bargaining agreement, property or assets of any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
person, (viii) make any change [other than in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results ordinary course of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) business consistent with past practices,] incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parentassume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any debt securities of another person, or make any loans or advances, or (iii) enter into any “keep well” or other agreement to maintain Parent Material Contract;
(f) make any financial statement condition of another person capital expenditure or enter into any arrangement having contract or commitment therefore, other than in the economic effect ordinary course of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other personbusiness consistent with past practices;
(ixg) make amend, terminate or agree to make extend any new capital expenditure or expendituresParent Material Contract;
(xh) make delay or accelerate payment of any Tax election account payable or settle other liability of the Company beyond or compromise any Tax in advance of its due date or the date when such liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities would have been paid in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or
(xiiii) takeagree, in writing or otherwise, to take or authorize any of, or commit or agree to take any of, of the foregoing actionsactions or any action which would make any representation or warranty contained in Article IV untrue or incorrect.
Appears in 2 contracts
Sources: Merger Agreement (Front Porch Digital Inc), Merger Agreement (Front Porch Digital Inc)
Conduct of Business by Parent. Except for matters set forth in the Parent Disclosure Letter as required by applicable law or regulation and except as otherwise contemplated by this Agreement, until the Transaction Agreements, from earlier of the date termination of this Agreement to or the Effective Time Time, Parent shall, and shall cause Sub to, its subsidiaries to conduct its business their respective businesses in the usual, regular and ordinary course in substantially the same manner and consistent with past practices. Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated consented to by the Transaction AgreementsCompany, from in writing, after the date of this Agreement to the Effective Time, hereof Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of the Companyits subsidiaries to:
(ia) (A) declareamend or otherwise change its articles of incorporation or by-laws, set aside other than to increase the number of authorized shares of Parent Common Stock or pay any dividends onParent Preferred Stock, or make any other distributions in respect to otherwise implement the terms and conditions of this Agreement, or as permitted by this Agreement;
(b) issue, sell, pledge, dispose of, any of its capital stock (in the case of Parent) or membership interests (in the case of Sub), (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) or issue encumber or authorize the issuance issuance, sale, pledge disposition, grant or encumbrance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock (in the case of Parent) or membership interests (in the case of Sub), (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest thereof;
(c) declare, set aside, make or pay any dividend or other distribution, payable in the case of Parentcash, stock, property or otherwise, with respect to its capital stock;
(d) (i) reclassify, combine, split, or subdivide, directly or indirectly, any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable forcapital stock, or any options(ii) redeem, warrants purchase or rights to otherwise acquire, directly or indirectly, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” of its capital stock, “phantom” stock rightsexcept from any officer, stock appreciation rights director or stock-based performance unitsemployee upon termination of such officer, director or employee;
(iiie) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(ivi) acquire (including, without limitation, for cash or agree to acquire (A) shares of stock, by merging or consolidating withmerger, consolidation, or by purchasing acquisition of stock or assets) any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association partnership or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any collective bargaining agreement, property or assets of any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
person, (vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (Aii) incur any indebtedness for borrowed money other than pursuant to agreements disclosed in the Parent Disclosure Schedule, or guarantee any such indebtedness of another person, issue or sell any debt securities other than pursuant to agreements disclosed in the Parent Disclosure Schedule or warrants assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances other rights than pursuant to acquire any debt securities leasing oil and gas properties or oil and gas development agreements entered into in the ordinary course of Parent’s business, guarantee any debt securities of another personconsistent with past practice, or (iii) enter into any “keep well” new contract or other agreement which would require on the Parent Disclosure Schedule pursuant to maintain Section 4.7 and not otherwise permitted pursuant to this Agreement;
(f) make any financial statement condition of another person capital expenditure or enter into any arrangement having the economic effect of any of the foregoing, contract or (B) make any loans, advances or capital contributions to, or investments in, any other personcommitment therefore;
(ixg) make amend, terminate or agree extend any contract or agreement listed on the Parent Disclosure Schedule pursuant to make any new capital expenditure or expendituresSection 4.7;
(xh) make delay or accelerate payment of any Tax election account payable or settle other liability of the Company beyond or compromise any Tax in advance of its due date or the date when such liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities would have been paid in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xiii) after the date hereof enter into take any transaction withaction, or enter into permit any agreementevent or condition to occur or exist, arrangement which would cause any representation or understanding with, directly or indirectly, any warranty of Parent’s affiliates that would be required Parent to be disclosed pursuant to Item 404 of SEC Regulation S-Kuntrue; or
(xiiij) takeagree, in writing or otherwise, to take or authorize any of, or commit or agree to take any of, of the foregoing actionsactions or any action which would make any representation or warranty contained in Article IV untrue or incorrect.
Appears in 2 contracts
Sources: Merger Agreement (Legend Oil & Gas, Ltd.), Merger Agreement (New Western Energy Corp)
Conduct of Business by Parent. Except for matters set forth in Section 5.2 of the Parent Disclosure Letter Schedule or otherwise contemplated by the Transaction Agreementsthis Agreement or as required by applicable Law, from the date of this Agreement to the Effective Time Time, Parent shall, and shall cause Sub each of its Subsidiaries to, conduct its business in the usual, regular and ordinary course in substantially consistent with past practice and, to the same manner as previously conductedextent consistent therewith, use commercially reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and maintain its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. In addition, and without limiting the generality of the foregoing, except as for matters set forth in Section 5.2 of the Parent Disclosure Schedule or otherwise contemplated by the Transaction Agreementsthis Agreement or as required by applicable Law, from the date of this Agreement to the Effective Time, Parent shall not, and shall not permit Sub any of its Subsidiaries to, do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld, delayed or conditioned:
(ia) (Ai) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock (in the case stock, other than dividends and distributions by a direct or indirect wholly-owned Subsidiary of Parent) or membership interests (in the case of Sub)Parent to its parent company, (Bii) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) 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 stock, or (in the case of Parent) or membership interests (in the case of Sub), (Ciii) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) Parent or membership interests (in the case any of Sub) its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Subsecurities;
(iib) issue, deliver, sell or grant (Ai) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (Cii) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (Diii) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than the issuance of shares of Parent Common Stock upon the exercise of Parent Stock Options by any employee, officer or director of Parent outstanding on the date of this Agreement and in accordance with their present terms;
(iiic) amend the Parent CharterCharter Documents or other comparable charter or organizational documents of any Subsidiary of Parent, except for the Certificate Amendment and the Parent By-laws or the comparable organizational documents of SubLaw Amendments;
(ivd) in any single transaction or series of related transactions having a purchase price (including any assumed debt) in excess of $2 million in the aggregate, acquire or agree to acquire (Ai) any Person or business, whether by merging or consolidating with, or by purchasing any a substantial equity interest in or portion of the assets ofof such Person or business, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof otherwise or (Bii) any assetsassets that are material, individually or in the aggregate, to Parent and its Subsidiaries, taken as a whole;
(Ae) (i) subject to Section 5.2(b), grant to or announce any employee, executive officer incentive awards or director of Parent any increase in compensation, (B) grant severance or termination pay to any employee, executive officer officer, director or director other service provider of Parent or any increase of its Subsidiaries, except in severance the ordinary course of business consistent with past practice or termination payto the extent required under existing Parent Employee Plans or existing Parent Employment Agreements or by applicable Law, (Cii) enter into hire any employmentnew employees or officers, consulting, indemnification, severance except in the ordinary course of business consistent with past practice with respect to employees or termination agreement officers with any employee, executive officer an annual base salary and incentive compensation opportunity not to exceed $200,000 per employee or director of Parentofficer, (Diii) establish, adopt, enter into into, amend, modify or amend terminate in any material respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan Employee Plan, or (Eiv) take any action to accelerate any rights or benefits, pay or agree to pay any pension, retirement allowance, termination or severance pay, bonus or other employee benefit, or make any material determinations not in the ordinary course of business consistent with prior practice, under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Employee Plan;
(vif) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(viig) sell, lease (as lessor or lesseelessor), license or otherwise dispose of or subject to any Lien (other than any Permitted Lien) any properties or assetsassets that are material, individually or in the aggregate, to Parent and its Subsidiaries, taken as a whole, except licenses of or other grants of rights to use Intellectual Property in the ordinary course of business consistent with past practice and sales of inventory and excess or obsolete assets in the ordinary course of business consistent with past practice;
(viii) (Ah) incur any indebtedness for borrowed money or guarantee any such indebtedness of another personPerson, issue or sell any debt securities or warrants or other rights to acquire any debt securities of ParentParent or any of its Subsidiaries, guarantee any debt securities of another personPerson, enter into any “keep well” or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other personexcept for short-term borrowings incurred in the ordinary course of business consistent with past practice;
(ixi) make or agree to make any new capital expenditure or expendituresexpenditures (other than in the ordinary course of business or capital expenditures that are contemplated by Parent’s annual budget for 2011 and capital expenditure plan for 2012 which have been made available to the Company) that are in excess of $2.5 million in the aggregate;
(xj) make with respect to any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incurParent Intellectual Property, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities except in the ordinary course of business consistent with past practice, and except for agreements between or among Parent and its Subsidiaries, (yA) liabilities for reasonable fees and expenses incurred by encumber, impair, abandon, fail to maintain, transfer, license to any Person (including through an agreement with a reseller, distributor, franchisee or other similar channel partner), or otherwise dispose of any right, title or interest of Parent or any of its Subsidiaries in connection with any Parent Intellectual Property or Parent Software Products or (B) divulge, furnish to or make accessible any material confidential or other non-public information in which Parent or any of its Subsidiaries has trade secret or equivalent rights within the Transactions and Parent Intellectual Property to any Person who is not subject to an enforceable written agreement to maintain the confidentiality of such confidential or other non-public information;
(zk) the payment, discharge make or satisfaction of liabilities existing on the date hereof for general administrative expenses not change any material Tax election or settle or compromise any Tax liability or claim in excess of $100,000 1 million in the aggregate;
(l) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that (i) involve the payment of monetary damages equal to or lesser than the amounts specifically reserved with respect thereto on the balance sheet as of December 31, 2010 included in the Parent SEC Documents or that do not exceed $1 million individually or in the aggregate, (Bii) cancel if involving any indebtedness or waive any claims or rights non-monetary outcome, will not have a material effect on the continuing operations of value or Parent and (Ciii) waive the benefits of, or agree are with respect to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a partyordinary course customer disputes;
(xiim) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any new line of business outside of Parent’s affiliates that existing business;
(n) take any action, or knowingly fail to take any action, which action or failure to act would prevent or impede, or would be required reasonably likely to be disclosed pursuant to Item 404 prevent or impede, the Merger from qualifying as a reorganization within the meaning of SEC Regulation S-KSection 368(a) of the Code; or
(xiiio) take, authorize any of, or commit or agree to take any of, the foregoing actions. For purposes of this Section 5.2, if any action, transaction or omission is permitted by the terms of a subsection hereof that specifically relates to the subject matter of the subsection, such action, transaction or omission shall be deemed permitted under all other subsections of this Section 5.2 even if such action, transaction or omission has ancillary effects on other subject matters contemplated by other subsections of this Section 5.2. Nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct the operations of Parent or any of its Subsidiaries 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 (S1 Corp /De/), Merger Agreement (Fundtech LTD)
Conduct of Business by Parent. Except for matters set forth in During the Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, period from the date of this Agreement to and continuing until the Effective Time Parent shall, and shall cause Sub to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality earlier of the foregoing, except as contemplated by the Transaction Agreements, from the date termination of this Agreement pursuant to its terms or the Effective Time, Parent shall notnot knowingly take any action a principal purpose of which is, and shall not permit Sub tothe reasonably likely result of which would be, do a material delay in or interference with the consummation of the Merger. Neither Parent nor any Parent Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Company, except as a result of entering into or as contemplated by this Agreement or except as set forth in Section 6.09 of the CompanyParent Disclosure Schedule:
(ia) amend or otherwise change its certificate of incorporation or bylaws or equivalent organizational documents;
(Ab) declareissue, set aside or pay any dividends onsell, or make any other distributions in respect pledge, dispose of, any of its capital stock (in the case of Parent) grant, transfer, lease, license, guarantee or membership interests (in the case of Sub)encumber, (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) or issue or authorize the issuance of any other securities in respect issuance, sale, pledge, disposition, grant, transfer, lease, license or encumbrance of, in lieu (i) more than outstanding 20% of or in substitution for the shares of its capital stock (in the case of Parent) Parent or membership interests (in the case of Sub), (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case a Parent Subsidiary of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalizationclass, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable foror exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquireacquire more than 20% of the outstanding shares of such capital stock or any other ownership interest (including, without limitation, any such sharesphantom interest), Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;
(iii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan Subsidiary, other than the issuance of shares of Parent common stock pursuant to the exercise of stock options granted pursuant to the Parent Stock Plans, or (Eii) take any action to accelerate any rights material property or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union material assets of Parent or any Parent Benefit Plan;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of ParentSubsidiary, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities providing products and services in the ordinary course of business consistent with past practice;
(i) an acquisition (including, without limitation, by merger, consolidation, or acquisition of stock or assets) of any interest in any corporation, partnership, other business organization or person or any division thereof which would be considered a "Significant Subsidiary" of the Parent (yafter taking into effect the Merger); (ii) liabilities for reasonable fees and expenses incurred by Parent except in connection with an acquisition permitted pursuant to the Transactions foregoing clause (i), incur any material indebtedness for borrowed money or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person which are material to the Parent (other than Parent and (zParent Subsidiaries) for borrowed money or make any loans or advances, material to the paymentbusiness, discharge assets, liabilities, financial condition or satisfaction results of liabilities existing on operations of Parent and the date hereof Parent Subsidiaries, taken as a whole, other than borrowings under the Parent's credit facility for general administrative expenses not use in excess of $100,000 in operating the aggregate, (B) cancel any indebtedness or waive any claims or rights of value business; or (Ciii) waive enter into or amend any contract, agreement, commitment or arrangement in which the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a partyobligated to perform and, if fully performed, would not be permitted under this Section 6.09(c);
(xiid) after declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, except that any Parent Subsidiary may pay dividends or make other distributions to Parent or any other Parent Subsidiary;
(e) reclassify, combine, split or subdivide any of its capital stock;
(f) amend or change the date hereof enter into period (or permit any transaction withacceleration, amendment or change) of exercisability of options granted under the Parent Stock Plans or other options and warrants or take any action to reprice any such options and warrants;
(g) authorize or enter into any agreement, arrangement formal or understanding with, directly informal agreement or indirectly, otherwise make any commitment to do any of Parent’s affiliates that the foregoing or take any action which would be required result in any of the conditions to be disclosed pursuant to Item 404 of SEC Regulation S-K; orthe merger set forth herein not being satisfied.
(xiiih) take, authorize any of, or commit or agree to take any of, action resulting in the foregoing actionsdelisting of Parent from the Amex; and
(i) take any action resulting in a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Opticare Health Systems Inc), Merger Agreement (Vision Twenty One Inc)
Conduct of Business by Parent. Except for matters set forth in During the Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, period from the date of this Agreement to and continuing until the Effective Time Parent shall, and shall cause Sub to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality earlier of the foregoing, except as contemplated by the Transaction Agreements, from the date termination of this Agreement pursuant to its terms or the Effective Time, Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of the Companyfollowing:
(ia) (A) declareDeclare, set aside or pay any dividends on, on or make any other distributions (whether in cash, stock, equity securities or property) in respect of, of any of its capital stock (in the case of Parent) or membership interests (in the case of Sub), (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its any capital stock stock;
(in the case of Parentb) or membership interests (in the case of Sub), (C) purchasePurchase, redeem or otherwise acquire acquire, directly or indirectly, any shares of capital stock of Parent or its subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof;
(in the case of Parentc) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt Adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalizationrestructuring, recapitalization or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Subreorganization;
(iid) issue, deliver, sell Engage in any action that could reasonably be expected to cause the Merger to fail to qualify as a "reorganization" under Section 368(a) of the Code whether or grant (A) any shares not otherwise permitted by the provisions of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;this Article IV; or
(iiie) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(iv) acquire Acquire or agree to acquire (A) by merging or merging, consolidating with, or by purchasing any equity interest in or a material portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefitsthereof, or make any determinations under any collective bargaining agreementacquire, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license sell or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person assets or enter into any arrangement having the economic effect of any of the foregoingjoint ventures, strategic partnerships or (B) make any loansalliances, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), in each case other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, practice or for consideration (ycapital stock of Parent shall be measured at the then current market price per share) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or
(xiii) take, authorize any of, or commit or agree to take any of, the foregoing actions20,000,000.
Appears in 2 contracts
Sources: Merger Agreement (Xcarenet Inc), Merger Agreement (Healthcare Com Corp)
Conduct of Business by Parent. Except for matters set forth in the The Parent Disclosure Letter or otherwise contemplated by the Transaction Agreementscovenants and agrees that, from the date of this Agreement to the Effective Time Time, the Parent shall, and shall cause Merger Sub to, conduct its their business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time, Parent shall not, and shall not permit Merger Sub to, do any of the following without the prior written consent of the Company:Company (which consent shall not be unreasonably withheld or delayed):
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock (in the case of Parent) or membership interests (in the case of Sub)stock, (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) 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 (in the case of Parent) or membership interests (in the case of Sub)stock, (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Subof, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the its corporate structure or ownership of Parent or Substructure;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub)stock, (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such sharesshares of its capital stock, Voting Parent Debt, voting securities or convertible or exchangeable securities or (DC) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;
(iii) amend the Parent Charter, the Parent By-laws Bylaws or the comparable organizational documents of Merger Sub, other than as contemplated herein;
(iv) acquire sell, transfer, deliver, lease, license, sublicense, mortgage, pledge, encumber or agree to acquire otherwise dispose of (in whole or in part), or create, incur, assume or subject any lien on, any of its assets (including any Parent Intellectual Property) other than (A) by merging in the ordinary course of business consistent with past practice, but in no event shall such dispositions exceed $50,000 individually or consolidating with$100,000 in the aggregate, or by purchasing any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assetspursuant to the terms of contracts entered into as of the date of this Agreement, which shall be disclosed on the Parent Disclosure Letter;
(v) enter into or amend any contract, transaction, indebtedness or other arrangement in which any of its directors or other affiliates, or any of their respective affiliates or family members have a direct or indirect financial interest;
(vi) (A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan union, or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vivii) make any change in accounting methods, principles or practices materially affecting the its reported consolidated assets, liabilities or results of operations of Parentoperations, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parentsecurities, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any material Tax election or election, settle or compromise any material Tax liability or refundrefund or file any amended Tax Return;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, with any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-KB; or
(xiiixii) take, authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Sand Hill It Security Acquisition Corp), Merger Agreement (Sand Hill It Security Acquisition Corp)
Conduct of Business by Parent. Except for matters set forth in During the Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, period from the date of this Agreement to and continuing until the Effective Time Parent shall, and shall cause Sub to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality earlier of the foregoing, except as contemplated by the Transaction Agreements, from the date termination of this Agreement pursuant to its terms or the Effective Time, Parent and, with respect to clause (e), its subsidiaries, shall not, and except to the extent that Company shall not permit Sub to, do any of the following without the prior written otherwise consent of the Companyin writing:
(ia) (A) declareDeclare, set aside or pay any dividends on, on or make any other distributions (whether in cash, shares, equity securities or property) in respect of, of any of its share capital stock (in the case of Parent) or membership interests (in the case of Sub), (B) split, combine or reclassify any of its share capital stock (in the case of Parent) or membership interests (in the case of Sub) or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its any capital stock (in the case stock, other than dividends or distributions by any of Parent's subsidiaries to Parent or any of Parent's subsidiaries;
(b) or membership interests (in the case of Sub), (C) purchasePurchase, redeem or otherwise acquire acquire, directly or indirectly, any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Subits subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or alter through merger, liquidation, reorganization or restructuring or purchase agreements in any other fashion effect on the corporate structure or ownership of Parent or Subdate hereof;
(iic) issueCause, deliver, sell permit or grant propose any amendments to the Parent Certificate of Incorporation or Bylaws (A) any shares or similar governing instruments of its capital stock (in the case of Parent) or any of its membership interests (in the case of Subsubsidiaries), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;
(iiid) amend the Parent CharterRevalue any of its assets or, the Parent By-laws except as required by GAAP, make any change in accounting methods, principles or the comparable organizational documents of Subpractices;
(ivi) acquire Acquire or agree enter into a definitive agreement to acquire (A) by merging or consolidating with, or by purchasing any equity interest in or material portion of the capital stock or assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (Bii) be acquired by or enter into a definitive agreement to be acquired by merging or consolidating with, or by another entity purchasing any assets;
material portion of the business of Parent or its subsidiaries, taken as a whole; provided, however, that the foregoing clauses (i) and (ii) shall not apply to any such transaction or series of transactions to effect the foregoing (a "Permitted Parent Transaction") whereby the consideration paid or payable under a transaction described in clause (i) is less than or equal to $1.45 billion or in the case of a transaction described in clause (ii) the fully diluted capitalization of Parent (as defined below)is converted or would be convertible into less than 65% of the fully diluted capitalization of the resulting entity. For purposes of this Section 4.3(c), the value of noncash consideration with respect to clause (i) shall be, as to shares of Parent Common Stock, the number of such shares issuable in such transaction multiplied by the closing price of Parent Common Stock on NASDAQ on the date such transaction is closed or a definitive agreement is entered into and, as to noncash consideration, the fair market value of such consideration on the date such transaction is closed or a definitive agreement is entered into, with such fair market value to be determined in good faith by the Board of Directors of Parent. For purposes of this Section 4.3(e), the fully diluted capitalization of Parent immediately prior to such a transaction shall mean the number of shares of Parent Common Stock that (A) grant to any employeeassumes that the Merger occurred as of ▇▇▇▇▇ ▇▇, executive officer or director ▇▇▇▇, (▇) the shares of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vi) make any change in accounting methods, principles or practices materially affecting Common Stock issuable upon the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or Merger are based on Company Common Stock and other rights to acquire Company Common Stock as of March 31, 2001 and (C) is comprised all shares of outstanding Parent Common Stock, options and warrants to acquire Parent Common Stock and shares of Parent Common Stock issuable upon conversion of the Parent Convertible Notes and any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” other convertible debentures.
(f) Agree in writing or other agreement otherwise to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of take any of the foregoing, or actions described in paragraphs (Ba) make any loans, advances or capital contributions to, or investments in, any other person;
through (ixe) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or
(xiii) take, authorize any of, or commit or agree to take any of, the foregoing actions.above. ARTICLE V
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Sawtek Inc \Fl\), Merger Agreement (Triquint Semiconductor Inc)
Conduct of Business by Parent. Except for matters set forth in Parent covenants and agrees that, during the Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time Time, unless the Company shall otherwise agree in writing, which agreement shall not be unreasonably withheld or delayed, Parent shall, shall conduct its business and shall cause Sub to, conduct its business the businesses of the Parent Subsidiaries to be conducted in the usual, regular and ordinary course in substantially the same manner of business except as previously conductedexpressly contemplated by this Agreement. In addition, and without limiting the generality of the foregoing, except Except as contemplated by this Agreement, Parent shall not, during the Transaction Agreements, period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time, Parent shall not, and shall not permit Sub to, directly or indirectly do any of the following without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed:
(ia) amend or otherwise change the Certificate of Incorporation or Bylaws of Parent other than incident to a stock split or combination;
(b) (Ai) declare, set aside aside, make or pay any dividends ondividend or other distribution (whether in cash, stock or make property or any other distributions combination thereof) in respect of, of any of its capital stock, except for quarterly cash dividends and stock dividends and any Parent Subsidiary may declare and pay a dividend to its parent or Parent or (in ii) reclassify the case of Parent) or membership interests (in the case of Sub), (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) Parent Common Stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock Parent Common Stock;
(in the case of Parentc) or membership interests (in the case of Sub), (C) purchase, redeem or otherwise acquire issue any shares of capital Parent Common Stock (except restricted stock (in or common stock issued pursuant to stock options issued under the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring Stock Option Plans or in any other fashion stock dividend) in one transaction or series of related transactions if the corporate structure or ownership shares so issued constitute more than 15% of the outstanding shares of Parent or SubCommon Stock (after giving effect to such issuance);
(ii) issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;
(iii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(ivd) acquire (by merger, consolidation or agree to acquire (Aacquisition of stock or assets) by merging or consolidating with, or by purchasing any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association partnership or other business organization or division thereof or (B) any assets;if the consideration therefor would exceed $150,000,000; and
(Ae) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits oftake, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectlytake, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or
the actions described in Sections 5.3(a) through (xiiic) take, authorize any ofabove, or commit any action which would make any of the representations or agree warranties of Parent contained in this Agreement untrue or incorrect in any material respect as contemplated hereby or prevent Parent from performing or cause Parent not to take perform in any of, the foregoing actionsmaterial respect its covenants hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Beazer Homes Usa Inc), Merger Agreement (Beazer Homes Usa Inc)
Conduct of Business by Parent. Except for matters set forth in Pending the Parent Disclosure Letter or otherwise contemplated by Merger. During the Transaction Agreements, period from the date of this Agreement to and continuing until the earlier of the termination of this Agreement or the Effective Time Time, Parent shallcovenants and agrees that, and unless the Company shall cause Sub tootherwise agree in writing, Parent shall conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, of business and without limiting the generality of the foregoing, except as contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time, Parent shall not, consistent with past practice and shall not permit Sub todirectly or indirectly do, do or propose to do, any of the following without the prior written consent of the Company:
(a) amend or otherwise change Parent's Articles of Incorporation or By-Laws;
(i) (A) declare, set aside aside, make or pay any dividends ondividend or other distribution (whether in cash, stock or make property or any other distributions combination thereof) in respect of, of any of its capital stock (in the case of Parent) stock; or membership interests (in the case of Sub), (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) 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 (in the case of Parent) or membership interests (in the case of Sub), (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliversell, sell pledge or grant (A) dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of its capital stock (in the case of Parent) of, or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquireacquire any shares of, its capital stock of any such shares, Voting Parent Debt, voting securities class or convertible other property or exchangeable securities or (D) assets whether pursuant to any “phantom” stock, “phantom” stock rightsrights agreement, stock appreciation rights option plans or stock-based performance unitsotherwise, provided that Parent may issue shares of Parent Common Stock pursuant to currently outstanding options or employee stock purchases referred to on the Parent Schedule in response to Section 3.2 above and Parent may issue options pursuant to its 1998 Equity Compensation Plan in amounts and on terms consistent with past practice, provided that such option grants do not exceed 50,000 shares in the aggregate;
(iii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(ivc) acquire or agree to acquire (A) acquire, by merging or consolidating with, or by purchasing any an equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof thereof, or (B) otherwise acquire or agree to acquire any assets of any other person, or dispose of any assets;, which, in any such case, would materially delay or prevent the consummation of the Merger and the other transactions contemplated by this Agreement; or
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (Ed) take any action to accelerate any rights change its accounting policies or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, procedures except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) GAAP occurring after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-Khereof; or
(xiiie) take or agree in writing or otherwise to take, authorize (i) any ofof the actions described in this Section 4.2; (ii) any action which would make any of Parent's representations or warranties in this Agreement, if made on and as of the date of such action or agreement, untrue or incorrect in any material respect; (iii) any action which could prevent it from performing, or commit cause it not to perform, its obligations under this Agreement; (iv) any action that would cause the Merger not to be treated as a reorganization within the meaning of Section 368(a) of the Code; or agree to take (v) any of, action that would prevent or impede the foregoing actionsMerger from qualifying as a "pooling of interests" for accounting purposes.
Appears in 2 contracts
Sources: Merger Agreement (Noodle Kidoodle Inc), Merger Agreement (Zany Brainy Inc)
Conduct of Business by Parent. Except for matters set forth in the Parent Disclosure Letter as required by applicable law or regulation and except as otherwise contemplated by this Agreement, until the Transaction Agreements, from earlier of the date termination of this Agreement to or the Effective Time Time, Parent shall, and shall cause Sub to, its subsidiaries to conduct its business their respective businesses in the usual, regular and ordinary course and consistent with past practices. Except as set forth in substantially Section 5.4 of the same manner Parent Disclosure Schedule, as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated consented to by the Transaction AgreementsCompany, from in writing, after the date of this Agreement to the Effective Time, hereof Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of the Companyits subsidiaries to:
(i) (A) declareamend or otherwise change its certificate of incorporation or by-laws, set aside other than to increase the number of authorized shares of Parent Common Stock or pay any dividends onParent preferred stock, or make any other distributions in respect ofto otherwise implement the terms and conditions of this Agreement, any of its capital stock (in the case of Parent) or membership interests (in the case of Sub), as permitted by this Agreement;
(B) splitissue, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) or issue sell, pledge, dispose of, encumber or authorize the issuance issuance, sale, pledge disposition, grant or encumbrance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock (in the case of Parent) or membership interests (in the case of Sub), (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliver, sell or grant (Ai) any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest thereof, other than (x) any issuance in the case connection with a Qualified Financing, (y) any issuance pursuant to any outstanding security or agreement of Parent, or (z) any issuance or sale pursuant to any plan for or agreement with any officer, director or employee of Parent; or (ii) any of its membership interests (assets, tangible or intangible, except pursuant to contracts or agreements identified in the case of Sub), (B) any Voting Parent Debt or other voting securities, Disclosure Schedule;
(C) declare, set aside, make or pay any securities convertible into dividend or exchangeable forother distribution, payable in cash, stock, property or any optionsotherwise, warrants or rights with respect to acquireits capital stock, any such sharesexcept, Voting Parent Debtif at all, voting securities or convertible or exchangeable securities or with respect to shares which may be issued in a Qualified Financing;
(D) (i) reclassify, combine, split, or subdivide, directly or indirectly, any “phantom” of its capital stock, “phantom” stock rightsor (ii) redeem, stock appreciation rights purchase or otherwise acquire, directly or indirectly, any of its capital stock-based performance units, except from any officer, director or employee upon termination of such officer, director or employee;
(iiiE) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(ivi) acquire (including, without limitation, for cash or agree to acquire (A) shares of stock, by merging or consolidating withmerger, consolidation, or by purchasing acquisition of stock or assets) any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association partnership or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any collective bargaining agreement, property or assets of any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
person, (vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (Aii) incur any indebtedness for borrowed money other than pursuant to agreements disclosed in the Parent Disclosure Schedule, or guarantee any such indebtedness of another person, issue or sell any debt securities other than pursuant to agreements disclosed in the Parent Disclosure Schedule or warrants assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances other rights than pursuant to acquire any debt securities licensing/development agreements entered into in the ordinary course of Parent's business, guarantee any debt securities of another personconsistent with past practice, or (iii) enter into any “keep well” or other agreement new Parent Contract not otherwise permitted pursuant to maintain this Agreement;
(F) make any financial statement condition of another person capital expenditure or enter into any arrangement having the economic effect of any contract or commitment therefore other than pursuant to licensing/development agreements disclosed in Section 4.6 of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other personParent Disclosure Schedule;
(ixG) make amend, terminate or agree to make extend any new capital expenditure or expendituresParent Contract;
(xH) make delay or accelerate payment of any Tax election account payable or settle other liability of the Company beyond or compromise any Tax in advance of its due date or the date when such liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities would have been paid in the ordinary course of business consistent with past practice;
(I) take any action, or permit any event or condition to occur or exist, which would cause any representation or warranty of Parent to be untrue; or
(yI) liabilities agree, in writing or otherwise, to take or authorize any of the foregoing actions or any action which would make any representation or warranty contained in Article IV untrue or incorrect. Notwithstanding the foregoing, and anything to the contrary in this Agreement, the parties acknowledge and agree that Parent may negotiate, execute, deliver and perform agreements to establish customary benefit and compensation arrangements for reasonable fees its officers, directors and expenses incurred by Parent employees, appoint additional officers or directors and hire new employees and enter into customary agreements with them, enter in to customary arrangements to obtain insurance, enter into formal arrangements concerning its occupancy and use of its current headquarters space in New York, New York, amend, create and adopt such corporate governance policies, procedures, rules and regulations, as may be appropriate in connection with Parent's listing application or SOXA, take actions which are appropriate or necessary to enhance the Transactions corporate staffing and operations of Parent, and take actions which are appropriate or necessary to memorialize the registration rights of Parent's stockholders as heretofore disclosed to Company's management (each of the foregoing, a "Permitted Parent Action"), and no such Permitted Parent Action shall be deemed to breach any Parent representation, warranty, covenant or agreement in this Agreement, provided, that no such Permitted Parent Action shall have a material adverse effect on Parent and that Parent shall notify the Company of each such Permitted Parent Action. In appointing officers or directors between the date of this Agreement and the Closing Date pursuant to this paragraph, Parent shall only appoint, if any at all, (i) independent directors, (ii) other directors to replace existing directors, and (ziii) the paymentone or more officers to replace functions currently performed by any officer or officers being replaced. In no event will any contract with any officer be in an amount which individually, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 taken together with all other contracts with any such newly appointed officers, in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree is material to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or
(xiii) take, authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. Except for matters set forth in During the Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time Time, Parent shall, and shall cause Sub its subsidiaries to, conduct its use all reasonable efforts to preserve intact their current business in organizations, keep available the usualservices of their current officers and employees and preserve their relationships with customers, regular suppliers and ordinary course in substantially the same manner as previously conductedothers having business dealings with them. In addition, and without limiting the generality of the foregoing, except as contemplated by the Transaction Agreements, from Between the date of this Agreement to and the Effective TimeTime or until the earlier termination of this Agreement pursuant to its terms, except (1) as contemplated by this Agreement, (2) as set forth in Section 4.1(b) of the Parent Disclosure Schedule, or (3) with the prior written consent of the Company, Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of the Companyits subsidiaries to:
(i) (A) declare, set aside or pay (whether in cash, stock, property or otherwise) any dividends on, or make any other distributions in respect of, any of its capital stock (in the case stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of Parent) or membership interests (in the case of Sub)Parent to its parent, (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) 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 (in the case of Parent) or membership interests (in the case of Sub), (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) Parent or membership interests (in the case any of Sub) its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or securities; provided, however, that with respect to clause (DC) adopt a plan only, Parent may take such actions in an aggregate amount not to exceed $50 million in addition to any such actions taken as required by the proviso in Section 4.1(b)(ii)(C) to offset issuances of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or capital stock in any other fashion the corporate structure or ownership of Parent or Suban acquisition permitted under Section 4.1(b)(iv);
(ii) (x) issue, deliver, sell sell, award, pledge, dispose of or grant otherwise encumber or authorize or propose the issuance, delivery, grant, sale, award, pledge or other encumbrance (Aincluding limitations in voting rights) or authorization of, any shares of its capital stock (in the case of Parent) stock, any voting securities or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable forinto, or any optionsrights, warrants or rights options to acquire, any such shares, Voting Parent Debt, voting securities or convertible securities, (y) amend or exchangeable securities otherwise modify the terms of any such rights, warrants or options (except as expressly contemplated by this Agreement) or (Dz) accelerate the vesting of any “phantom” stockof the stock options in each case other than (A) the issuance of Parent Common Stock upon the exercise of stock options outstanding under the Parent Stock Incentive Plan on the date of this Agreement in accordance with their present terms or in accordance with the present terms of any employment agreements existing on the date of this Agreement, “phantom” (B) the grant of stock rightsoptions to employees and directors to purchase up to 1,000,000 shares of Parent Common Stock (at an exercise price equal to the fair market value of the Parent Common Stock on the date of grant) pursuant to the Parent Stock Incentive Plan as in effect on the date of this Agreement (as the same may be amended to increase the number of shares of Parent Common Stock which may be the subject of awards thereunder), and the issuance of Parent Common Stock upon the exercise thereof, and (C) the issuance of Parent Common Stock in connection with a transaction not prohibited by Section 4.1(b)(iv); provided, however, that stock appreciation rights or stock-based performance unitsissuances in connection with a transaction permitted under Section 4.1(b)(iv) hereof may not exceed the number of shares of Parent Common Stock purchased by the Parent after the date hereof;
(iii) amend its Amended and Restated Articles of Association or Amended and Restated Memorandum of Association, other than as contemplated by the Parent Charter, the Parent By-laws or the comparable organizational documents of SubDomestication;
(iv) acquire or agree to acquire (Afor cash or shares of stock or otherwise) by merging or consolidating with, or by purchasing any equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof thereof; provided, however, that the Parent and its subsidiaries may enter into such transactions (in addition to those listed on Schedule 4.1(b)), other than with an affiliate, if the purchase price and required capital contributions therefore (whether consisting of cash or Parent Common Stock or a combination of both) do not exceed, in the aggregate, $200 million (B) any assetsthe "Parent Acquisition Basket"), and if such transactions would not be reasonably likely to prevent or materially delay the consummation of the Merger;
(Av) grant mortgage or otherwise encumber or subject to any employeelien (a non- exclusive license shall not be considered a mortgage, executive officer encumbrance or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefitslien), or make sell, lease, exchange or otherwise dispose of any determinations under any collective bargaining agreementof, any its properties or assets, except for sales of its properties or assets in the ordinary course of business consistent with past practice or other agreement or commitment to or relating to any labor union or any sales that, exclusive of the transactions listed on Schedule 4.1(b) of the Parent Benefit PlanDisclosure Schedule, do not exceed, in the aggregate $50 million;
(vi) make dispose of, pledge or encumber any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent's or its subsidiaries' intellectual property, except insofar as may have been required by a change in GAAPthrough non-exclusive license agreements;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assetschange its fiscal year;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of ParentParent or any of its subsidiaries, guarantee any debt securities of another person, enter into any “"keep well” " or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) indebtedness incurred to effect a transaction disclosed on Schedule 4.1(b) of the Parent Disclosure Schedule, (y) indebtedness incurred or assumed in connection with one or more acquisition transactions permitted under Section 4.1(b)(iv), provided that indebtedness assumed in connection with any such transaction (as opposed to indebtedness incurred to effect any such transaction which will be counted solely against the limitations of Section 4.1(b)(iv)) shall not exceed the amount that would otherwise be permitted to be incurred pursuant to clause (z) below plus any remaining balance in the Parent Acquisition Basket, and (z) indebtedness which when added to existing indebtedness of Parent and its subsidiaries (other than indebtedness incurred pursuant to clause (x) and indebtedness incurred or assumed pursuant to clause (y) to the extent that such indebtedness reduces the available amount in the Parent Acquisition Basket) does not exceed in the aggregate $50 million, or (B) other than in the ordinary course of business consistent with past practice and within the limits specified in Section 4.1(b)(iv), make any loans, advances or capital contributions to, or investments in, any other person, other than to Parent or any direct or indirect wholly owned subsidiary of Parent;
(ix) purchase or acquire, or permit or cause any of its subsidiaries to purchase or acquire, beneficial or record ownership of any shares of Company Common Stock;
(x) make or agree to make any new capital expenditure or expenditures;
expenditures (xexclusive of expenditures set forth on Schedule 4.1(b)) make any Tax election or settle or compromise any Tax liability or refundfor tangible physical assets which in the aggregate exceed $50 million;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities except in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the paymentmodify, discharge amend, renew, fail to renew or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel terminate any indebtedness material contract or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Parent or any subsidiary is a party;party or waive, release or assign any material rights or claims; or
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or
(xiii) take, authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. Except for matters set forth in During the Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time Parent shall, and shall cause Sub to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated by the Transaction Agreements, period from the date of this Agreement to the Effective Time, except as provided on Section 5.01(b) of the Parent Disclosure Letter and except as expressly contemplated by this Agreement or required by applicable Laws, Parent shall not, and shall not permit Sub any of its Subsidiaries to, do any of the following without the Company’s prior written consent (in the case of clause (ii) and (solely with respect to the Company:foregoing clause) (vii), such consent not to be unreasonably withheld, conditioned or delayed):
(i) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of its capital stock (in stock, other than dividends or distributions by a direct or indirect wholly owned Subsidiary of the case of Parent) Company to its parent or membership interests (in the case of Sub), (B) split, combine or reclassify any of its capital stock stock;
(in the case ii) except for transactions among Parent and one or more of its Subsidiaries or among one or more of Parent) ’s Subsidiaries, and except in connection with any financing related to the Merger and the other transactions contemplated by this Agreement, issue, deliver, sell, grant, pledge or membership interests (in the case of Sub) otherwise encumber or issue or authorize the issuance of subject to any other securities in respect of, in lieu of or in substitution for Lien any shares of its capital stock (in the case of Parent) or membership interests (in the case of Sub)stock, (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) other voting securities or any other securities thereof convertible into, or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible securities, or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units; provided, however, that Parent may (A) issue shares of Parent Common Stock (1) in respect of any current or future equity or equity based awards under the Parent Plans, (2) in order to finance, or as consideration in, acquisitions otherwise permitted by this Agreement, (3) in connection with financing or refinancing transactions related to, or reasonably advisable in connection with, this Agreement and the transactions contemplated hereby (including to fund fees and expenses) and (4) pursuant to outstanding convertible securities, including warrants, (B) grant equity and equity-based awards in the ordinary course of business or (C) pledge or otherwise encumber or subject to any Liens shares of capital stock of a Subsidiary of Parent in connection with financing or refinancing transactions in the ordinary course of business and permitted by this Agreement;
(iii) amend the Parent Charter, Charter (other than the Parent By-laws Charter Amendment) or the Parent Bylaws or the comparable charter or organizational documents of Subany of its Subsidiaries (other than in connection with the Merger and the other transactions contemplated by this Agreement) if such amendment would be adverse to Parent or the Company, or holders of Company Common Stock who receive Parent Common Stock in the Merger;
(iv) acquire directly or agree to indirectly acquire (A) by merging or consolidating with, or by purchasing any all of or a substantial equity interest in or portion of the assets ofin, or by any other manner, any division, business or equity interest of any corporation, partnership, joint venture, association or other business organization or division thereof person or (B) any assetsassets forming part of such a division or business; except in each case, that would not, or would not reasonably be expected to, prevent or materially impair the ability of Parent or Merger Sub to consummate the Merger before the Termination Date;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (Ev) take any action to accelerate any rights or benefitsthat could, or make fail to take any determinations under any collective bargaining agreementaction, any other agreement or commitment the failure of which could, reasonably be expected to or relating to any labor union or any Parent Benefit Planprevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code;
(vi) make enter into any change in accounting methods, principles other transaction or practices take any other action that would reasonably be expected to prevent or materially affecting delay or impair Parent’s or Merger Sub’s ability to consummate the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required Merger and the other transactions contemplated by a change in GAAP;this Agreement; or
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or
(xiii) take, authorize any of, or commit commit, propose or agree to take any of, the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. Except for matters set forth in the Parent Disclosure Letter as required by applicable law or regulation and except as otherwise contemplated by this Agreement, until the Transaction Agreements, from earlier of the date termination of this Agreement to or the Effective Time Time, Parent shall, and shall cause Sub to, its subsidiaries to conduct its business their respective businesses in the usual, regular and ordinary course in substantially the same manner and consistent with past practices. Except as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated consented to by the Transaction AgreementsCompany, from in writing, after the date of this Agreement to the Effective Time, hereof Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of the Companyits subsidiaries to:
(ia) (A) declareamend or otherwise change its articles of incorporation or by-laws, set aside other than to increase the number of authorized shares of Parent Common Stock or pay any dividends onParent Preferred Stock, or make any other distributions in respect to otherwise implement the terms and conditions of this Agreement, or as permitted by this Agreement;
(b) issue, sell, pledge, dispose of, any of its capital stock (in the case of Parent) or membership interests (in the case of Sub), (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) or issue encumber or authorize the issuance issuance, sale, pledge disposition, grant or encumbrance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock (in the case of Parent) or membership interests (in the case of Sub), (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest thereof;
(c) declare, set aside, make or pay any dividend or other distribution, payable in the case of Parentcash, stock, property or otherwise, with respect to its capital stock;
(d) (i) reclassify, combine, split, or subdivide, directly or indirectly, any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable forcapital stock, or any options(ii) redeem, warrants purchase or rights to otherwise acquire, directly or indirectly, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” of its capital stock, “phantom” stock rightsexcept from any officer, stock appreciation rights director or stock-based performance unitsemployee upon termination of such officer, director or employee;
(iiie) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(ivi) acquire (including, without limitation, for cash or agree to acquire (A) shares of stock, by merging or consolidating withmerger, consolidation, or by purchasing acquisition of stock or assets) any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association partnership or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any collective bargaining agreement, property or assets of any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
person, (vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (Aii) incur any indebtedness for borrowed money other than pursuant to agreements disclosed in the Parent Disclosure Schedule, or guarantee any such indebtedness of another person, issue or sell any debt securities other than pursuant to agreements disclosed in the Parent Disclosure Schedule or warrants assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances other rights than pursuant to acquire any debt securities licensing/development agreements entered into in the ordinary course of Parent’s business, guarantee any debt securities of another personconsistent with past practice, or (iii) enter into any “keep well” new contract or other agreement which would require on the Parent Disclosure Schedule pursuant to maintain Section 4.7 and not otherwise permitted pursuant to this Agreement;
(f) make any financial statement condition of another person capital expenditure or enter into any arrangement having the economic effect of any of the foregoing, contract or (B) make any loans, advances or capital contributions to, or investments in, any other personcommitment therefore;
(ixg) make amend, terminate or agree extend any contract or agreement listed on the Parent Disclosure Schedule pursuant to make any new capital expenditure or expendituresSection 4.7;
(xh) make delay or accelerate payment of any Tax election account payable or settle other liability of the Company beyond or compromise any Tax in advance of its due date or the date when such liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities would have been paid in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xiii) after the date hereof enter into take any transaction withaction, or enter into permit any agreementevent or condition to occur or exist, arrangement which would cause any representation or understanding with, directly or indirectly, any warranty of Parent’s affiliates that would be required Parent to be disclosed pursuant to Item 404 of SEC Regulation S-Kuntrue; or
(xiiij) takeagree, in writing or otherwise, to take or authorize any of, or commit or agree to take any of, of the foregoing actionsactions or any action which would make any representation or warranty contained in Article IV untrue or incorrect.
Appears in 1 contract
Conduct of Business by Parent. Except for matters as set forth in Section 4.01(b) of the Parent Disclosure Letter or Letter, except as otherwise contemplated by this Agreement or except as consented to in writing by the Transaction AgreementsCompany, during the period from the date of this Agreement to the Effective Time Time, Parent shall, and shall cause Sub to, conduct carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conductedheretofore conducted and as it is currently proposed to be conducted and in compliance in all material respects with all applicable Laws and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its material relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. In addition, and without Without limiting the generality of the foregoing, except as contemplated by during the Transaction Agreements, period from the date of this Agreement to the Effective Time, except as contemplated by this Agreement or as set forth in Section 4.01(b) of the Parent Disclosure Letter, or otherwise approved in writing by the Company, Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of the Company:
(i) (A) declareadjust, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock (in the case of Parent) or membership interests (in the case of Sub), (B) split, combine or reclassify the Parent Common Stock, (B) make, declare or pay any of its capital stock (in the case of Parent) dividend or membership interests (in the case of Sub) distribution on, or, directly or issue indirectly, redeem, purchase or authorize the issuance of otherwise acquire, any other securities in respect of, in lieu of or in substitution for shares of its capital stock (in the case Parent Common Stock or any securities or obligations convertible into or exchangeable for any shares of Parent) or membership interests (in the case of Sub)Parent Common Stock, (C) purchase, redeem grant any person any right or otherwise option to acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rightsParent Common Stock, warrants or options to acquire any such shares or other securities or (D) adopt a plan issue, deliver or sell or agree to issue, deliver or sell any additional shares of complete Parent Common Stock or partial liquidation, dissolution, merger, consolidation, recapitalizationany securities or obligations convertible into or exchangeable or exercisable for any shares of Parent Common Stock or such securities, or other reorganization (E) enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or SubCommon Stock;
(ii) issuedirectly or indirectly, deliversell, sell transfer, lease, pledge, mortgage, encumber or grant (A) any shares otherwise dispose of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt property or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance unitsassets;
(iii) amend the Parent Charter, the Parent By-laws make or the comparable organizational documents propose any changes in its Certificate of SubIncorporation or Bylaws;
(iv) acquire merge or agree to acquire (A) by merging or consolidating with, or by purchasing any equity interest in or portion of the assets of, or by consolidate with any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assetsperson;
(Av) grant to any employee, executive officer acquire assets or director capital stock of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Planperson;
(vi) make any change in accounting methodsincur, principles or practices materially affecting the reported consolidated assetscreate, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license assume or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur become liable for any indebtedness for borrowed money or guarantee any such indebtedness assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(vii) create any subsidiaries;
(viii) enter into, amend or modify any employment, severance, termination or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officer, director, consultant or employee, or pay any amounts not otherwise due to, any officer, director, consultant or employee, except as may be required by applicable Laws;
(ix) make enter into, adopt or agree to make amend any new capital expenditure or expenditures"employee benefit plan" as defined in Section 3(3) of ERISA;
(x) make take any Tax election action that could give rise to severance benefits payable to any officer or settle or compromise director of Parent as a result of the consummation of any Tax liability or refundof the transactions contemplated by this Agreement (including in connection with any post-consummation termination of employment);
(xi) change any method or principle of Tax or financial accounting, except to the extent required by GAAP or applicable Law;
(Axii) incurmodify, pay, discharge amend or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits ofterminate, or agree waive, release or assign any material rights or claims with respect to modify in any manner, any confidentiality, standstill or similar agreement Contract to which Parent is a party;
(xiixiii) after enter into, amend or terminate any confidentiality agreements, standstill agreements or similar arrangements or waive any provisions under any existing confidentiality agreement, standstill agreement or similar arrangements;
(xiv) write up, write down or write off the date hereof book value of any assets, except as required by GAAP consistently applied or as required by applicable Law;
(xv) incur or commit to any capital expenditures;
(xvi) take any action that would reasonably be likely to result in (A) any representation or warranty of Parent set forth in Article III becoming not true or not accurate in any material respect or (B) any condition set forth in Article VI not being satisfied;
(xvii) enter into or carry out any other transaction withother than in the ordinary course of business;
(xviii) make, revoke or enter into amend any agreementTax election, arrangement settle or understanding withcompromise any claim or assessment with respect to Taxes, directly execute or indirectly, consent to any waivers extending the statutory period of Parent’s affiliates that would be required limitations with respect to be disclosed pursuant to Item 404 the collection or assessment of SEC Regulation S-Kany Taxes or amend any Tax Returns; or
(xiiixix) take, authorize any of, agree (whether or commit or agree not in writing) to take any of, of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (BTHC VI Inc)
Conduct of Business by Parent. Except for matters During the Interim Period, except (x) as expressly set forth in Section 5.2 of the Parent Disclosure Letter Schedule or otherwise as expressly contemplated by the Transaction Agreements, from the date any other provision of this Agreement (including, without limitation, the Plan of Conversion) or the Three Party Agreement, (y) with the prior written consent of the Company (not to the Effective Time be unreasonably withheld, conditioned or delayed) or (z) as required by applicable Law, Parent shall, and shall cause Sub each other member of the Parent Group to, conduct its business operations in the usual, regular and ordinary course in substantially the same manner as previously conducted. In additionof business and shall, and without shall cause each other member of the Parent Group to, use its reasonable best efforts to (i) preserve substantially intact its business organization, (ii) keep available the services of its executive officers, other key employees and pilots, (iii) maintain in effect all material Parent Permits and (iv) maintain satisfactory relationships of the Parent Group with any persons with which the Parent Group has material business relations and with Governmental Entities that have jurisdiction over its business and operations. Without limiting the generality of the foregoing, during the Interim Period, except as contemplated permitted by the Transaction Agreements, from the date of this Agreement to the Effective Timeclauses (x) through (z) above, Parent shall not, and shall cause each other member of the Parent Group not permit Sub to:
(a) amend or otherwise change (whether by merger, do consolidation, conversion or otherwise) (i) the Parent Charter or Parent Bylaws, (ii) the comparable organizational documents of any other member of the Parent Group, (iii) the Post-Conversion Parent Charter or Post-Conversion Parent Bylaws (in each case, following the Conversion), or (iv) the Parent Treasury Documents;
(b) issue, sell, pledge, convey, dispose of (by merger, consolidation, division, operation of law or otherwise), grant, transfer or encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, or encumbrance of, any shares of capital stock of, or other Equity Interests in, any member of the Parent Group of any class, or securities convertible into, 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 ownership interest (including any such interest represented by Contract right), of such member of the Parent Group, other than (i) the issuance of shares of Parent Common Stock upon the vesting of equity award that are outstanding as of the date of this Agreement as set forth in Section 4.2(b) of the Parent Disclosure Schedule in accordance with their terms and those equity awards disclosed therein to be issued to members of Parent’s board of director pursuant to annual equity grants and to the executive officers of Parent pursuant to the terms of their respective employment agreements, or (ii) the issuance of shares of Parent Common Stock upon the exercise of the Parent Warrants;
(c) sell, pledge, convey, abandon, allow to lapse or expire, fail to renew or maintain, dispose of (by merger, consolidation, division, operation of Law or otherwise), transfer, lease, license or subject to any Lien (other than a Permitted Lien) any material property or assets (including any material Intellectual Property Rights) of any member of the Parent Group (other than non-exclusive licenses of Intellectual Property Rights granted in the ordinary course of business), except (i) pursuant to or as required by, any of the following without the prior written consent Contracts in effect as of the Company:date of this Agreement and previously made available to the Company or (ii) any sale, pledge, conveyance, consolidation, division, transfer, lease, license, or Lien solely between or among the Parent Group;
(i) (Ad) declare, set aside aside, make or pay any dividends ondividend 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 or registration of any of its capital stock, except any dividend or distribution declared, set aside, made, or make paid by any member of the Parent Group to any other distributions in respect member of the Parent Group;
(e) reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire (by merger, consolidation, operation of law, acquisition of stock, other equity interests or assets, formation of a joint venture or otherwise), directly or indirectly, any of its capital stock (in the case of Parent) or membership interests (in the case of Sub)other Equity Interests, (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) or issue or authorize or propose the issuance of capital stock or any other securities Equity Interests in respect of, in lieu of or in substitution for shares of its capital stock (or other Equity Interests, except for the vesting or settlement of any Parent RSUs or Parent Restricted Stock Awards set forth in the case of ParentSection 4.2(b) or membership interests (to fund any Tax withholding obligations of a member of the Parent Group in connection with the case vesting or settlement of Sub), (C) purchase, redeem any Parent RSUs or otherwise acquire Parent Restricted Stock Awards in accordance with the terms of such award or by any shares member of capital stock (in the case of Parent) or membership interests (in the case of Sub) or Parent Group to any other securities thereof member of the Parent Group;
(f) merge or consolidate any rights, warrants member of the Parent Group with any Person or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization, conversion or similar reorganization of any member of the Parent Group;
(g) acquire (including by merger, consolidation, recapitalizationoperation of Law, or acquisition of stock or other equity interests or assets, formation of a joint venture or otherwise) any interest in any Person or any assets, other than the purchase or acquisition of equipment, goods, technology, non-exclusive licenses under Intellectual Property Rights, or other reorganization materials, in each case, in the ordinary course of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Subbusiness;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;
(iii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (Ch) enter into any employment, consulting, indemnification, severance new line of business or termination agreement with terminate any employee, executive officer or director line of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Planbusiness existing as of the date of this Agreement;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viiii) (Ai) voluntarily repurchase, voluntarily prepay or incur any indebtedness for borrowed money or guarantee any such indebtedness of another personIndebtedness, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parentin each case, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (Bii) make any loans, advances or capital contributions to, or investments in, any other personPerson (other than a member of the Parent Group), (iii) enter into any “keep well” or other Contract to maintain any financial statement or similar condition of another Person that is not a member of the Parent Group or enter into any arrangement having the economic effect of any of the foregoing or (iv) assume, guarantee or endorse, or otherwise become liable or responsible for, similar obligations contemplated in clauses (i) and (ii) of any Person that is not a member of the Parent Group;
(ixj) enter, extend or renew or otherwise modify, amend or terminate or waive any material rights or obligations under any Parent Material Contract (or any Contract that would have been a Parent Material Contract if in existence as of the date hereof);
(k) make or authorize any capital expenditure, except for capital expenditures expressly set forth in the capital expenditures budget set forth on Section 5.2(k) of the Parent Disclosure Schedule;
(l) except to the extent required by (i) applicable Law or (ii) the existing terms of any Parent Benefit Plan or Parent CBA previously made available to the Company: (A) increase the compensation or benefits payable or to become payable to any Parent Service Provider (except in the ordinary course of business consistent with past practice with respect to any Parent Service Provider whose annual base compensation does not exceed $150,000), (B) grant any additional rights to severance or termination pay to, or enter into or amend any severance agreement with, any Parent Service Provider (other than in the ordinary course of business consistent with past practice in connection with a promotion of any Parent Service Provider whose annual base compensation, after such promotion, does not exceed $150,000), (C) establish, terminate, adopt, enter into or amend any bonus, profit sharing, thrift, pension, retirement, deferred compensation, retention, termination or severance plan, agreement, trust, fund, policy or other arrangement for the benefit of any Parent Service Provider (other than in the ordinary course of business consistent with past practice in connection with the hiring of any new Servicer Provider permitted under clause (E) below), (D) loan or advance any money or property to any Parent Service Provider (other than in connection with ordinary course business expense reimbursement and advances), (E) hire any Parent Service Provider, other than any Parent Service Provider whose anticipated annual base compensation does not exceed $150,000 in the ordinary course of business and on terms consistent with similarly situated Parent Service Providers, (F) terminate (other than termination for cause, death or disability) any Parent Service Provider, other than any Parent Service Provider whose annual base compensation does not exceed $150,000 in the ordinary course of business, or (G) make any material change to the terms and conditions of employment applicable to any group of employees, as reflected in work rules, employee handbooks, policies and procedures, or otherwise;
(m) (i) terminate, discontinue, close or dispose of any facility or business operation, or lay off any employees, or (ii) implement any early retirement or separation program, or any program providing early retirement window benefits or announce or plan any such action or program for the future;
(n) enter into or amend any collective bargaining agreement;
(o) forgive any material loans to Parent Service Providers or any of their respective Affiliates;
(p) make any material change in accounting policies, practices, principles, methods or procedures in effect as of September 30, 2024, other than as required by GAAP or by applicable Law;
(q) make any material adverse change to any privacy policy or to the security or operation of any Parent IT Assets, except in each case as required by applicable Law;
(r) enter into, terminate or materially amend any Parent Related Party Transaction other than as permitted pursuant to Section 5.2(l);
(s) implement any new policies or practices (or make any material changes to existing policies or practices) with respect to equity, interest rate, currency or commodity derivatives or hedging transactions;
(t) compromise, settle or agree to make settle any new capital expenditure Proceeding, other than any compromise, settlement or expendituresagreement for the payment of monetary damages (and compliance with confidentiality and other similar customary provisions) by Parent of $100,000 or less individually or $250,000 or less in the aggregate and is not covered by any Parent Insurance Policy or paid by the respective insurers thereunder, in each case as its sole remedy;
(i) make, change or rescind any material Tax election; (ii) settle or compromise any material Tax liability or claim or assessment for a material amount of Taxes; (iii) change (or request to change) any method of accounting for Tax purposes; (iv) file an amendment to any material Tax Return; (v) waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of material Taxes may be issued or in respect of any material Tax attribute that would give rise to any claim or assessment of Taxes of or with respect to the Parent Group (or its respective income, assets and operations) other than any extension pursuant to an extension to file any Tax Return; (vi) knowingly surrender or allow to expire any right to claim a refund of Taxes; (vii) enter into any “closing agreement” as described in Section 7121 of the Code (or any similar Legal Requirement) with any Governmental Entity; (viii) incur any material liability for Taxes other than in the ordinary course of business; (ix) prepare any material Tax Return in a manner inconsistent with past practice; or (x) take any action (or knowingly fail to take any action) that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment (as defined below);
(v) write up, write down or write off the book value of any tangible assets, except for depreciation, amortization or impairment in accordance with GAAP consistently applied;
(w) change the seat count, main cabin configuration or on-board amenities (including in-flight entertainment and wireless internet) of any aircraft subject to future delivery to Parent under any Parent Aircraft Purchase Contract;
(x) make take any Tax election action, or settle fail to take action, which action or compromise failure would be reasonably expected to result in the revocation, termination, cancellation or withdrawal of any Tax liability or refundParent Slots (excluding temporary returns to the FAA);
(xiy) fail to continue, in respect of all Parent Aircraft, all material maintenance programs applicable to such Parent Aircraft in the ordinary course of business (Aexcept as required by applicable Law), including using reasonable best efforts to keep all such Parent Aircraft in such condition as may be necessary to enable the airworthiness certification of such Parent Aircraft under the Federal Aviation Act to be maintained in good standing at all times;
(i) take any action that would cause any air carrier member of the Parent Group to fail to be, or fail to be owned and controlled by a “citizen of the United States” as defined in 49 U.S.C. § 40102(a)(15) of the Federal Aviation Act and as interpreted by DOT, or (ii) take any action that would cause any member of the Parent Group to fail to continue to be fully authorized and qualified to operate as an “air carrier” within the meaning of such Act operating under certificates and exemptions issued pursuant to such Act (49 U.S.C. §§ 40102(a)(2), 40109- and 41101-41112); or
(aa) agree, resolve, authorize or enter into any Contract or otherwise make any commitment, in each case to do any of the foregoing. In addition, from the date hereof through the Closing:
(i) Parent shall remain current and compliant in all material respects with all of its Indebtedness and creditor obligations, including the Mesa Obligations (as defined in the Three Party Agreement), and shall not incur, payassume, discharge guarantee or satisfy otherwise become liable for any claims, liabilities or obligations incremental Indebtedness;
(absolute, accrued, asserted or unasserted, contingent or otherwise), other than (xii) the payment, discharge or satisfaction of liabilities except in the ordinary course of business consistent with past practice, Parent shall not enter into any new Contracts with third Persons or employees, including labor groups, that create new liabilities or financial obligations for Parent or, after the Closing, the Surviving Corporation (y) liabilities including, for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction avoidance of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any mannerdoubt, any confidentialitynew collective bargaining agreements, standstill letters of agreement or similar agreement any amendments thereto), nor will Parent have instituted any wage rate increases for any of its employee groups, in each case without the Company’s prior written consent (not to which Parent is a partybe unreasonably withheld, conditioned or delayed);
(xiiiii) after Parent shall use its cash and cash equivalents only in the date hereof ordinary course of business or to repay, retire or otherwise extinguish the Mesa Obligations as and to the extent contemplated by the Three Party Agreement; and
(iv) Parent shall not make any new purchases of aircraft, engines or any other capital assets, and shall not enter into any transaction withnew strategic relationships, software license agreements or enter into any agreementother material long term Contracts. Without limiting Section 5.2, arrangement or understanding withnothing contained in this Agreement will give the Company, directly or indirectly, any the right to control or direct the operations of Parent’s affiliates that would be required Parent prior to be disclosed pursuant the Effective Time. Prior to Item 404 the Effective Time, Parent will exercise, consistent with the terms and conditions of SEC Regulation S-K; or
(xiii) takethis Agreement, authorize any ofincluding Section 5.2, or commit or agree to take any of, the foregoing actionscomplete control and supervision over its operations.
Appears in 1 contract
Sources: Agreement, Plan of Conversion and Plan of Merger (Mesa Air Group Inc)
Conduct of Business by Parent. Except for matters set forth in During the Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, period from the date Agreement Date and continuing until the earlier of (i) the termination of this Agreement to Agreement, (ii) the Effective Time Parent shalland (iii) with respect to clause (c) below, and shall cause Sub to, conduct its business the applicable Restriction Date (as defined in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time, Schedule 6.23(c)) Parent shall not, and it shall cause each of its Subsidiaries not permit Sub to, do any of the following without (except to the prior written consent of extent expressly provided otherwise herein or as consented to in advance in writing by the Company:, which consent shall not be unreasonably withheld, conditioned or delayed):
(ia) amend the Parent Organizational Documents;
(Ab) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other equity interests or voting securities, other than dividends and distributions by a direct or indirect wholly-owned subsidiary of Parent to Parent and stock dividend subject to Section 2.10, or (in the case of Parentii) or membership interests (in the case of Sub), (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) 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 (in the case of Parent) or membership interests (in the case of Sub), (C) purchaserepurchase, redeem or otherwise acquire acquire, or offer to repurchase, redeem or otherwise acquire, any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other voting securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalizationof, or other reorganization of Equity Interests in, Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt Subsidiaries or other voting securities, (C) any securities of Parent or any of its Subsidiaries convertible into or exchangeable forfor capital stock or voting securities of, or Equity Interest in, Parent or any of its Subsidiaries, or any optionswarrants, warrants or rights to acquirecalls, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;
(iii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants options or other rights to acquire any debt such capital stock, voting securities or Equity Interests;
(c) take any action set forth on Schedule 6.23(c);
(d) take any action that could reasonably be expected to prevent the Merger from qualifying as a “reorganization” under Section 368(a) of Parentthe Code; provided, guarantee however, that neither Parent nor either of the Merger Sub shall be deemed to have breached this covenant as a result of a decline in the value of Parent Class A Common Stock prior to the Closing (for any debt securities reason or for no reason) that results in any failure of another personthe Merger, enter into any taken together, to qualify as a “keep wellreorganization” within the meaning of Section 368(a) of the Code; or
(e) agree, resolve or other agreement commit to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of do any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or
(xiii) take, authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. Except for matters set forth in the Pending Closing. Parent Disclosure Letter or otherwise contemplated by the Transaction Agreementscovenants and agrees with Prize that, from the date of this Agreement to until the Effective Time Time, each of the Parent shall, and shall cause Sub to, Companies will conduct its business only in the usualordinary and usual course consistent with past practices. Notwithstanding the preceding sentence, regular Parent covenants and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the foregoingagrees with Prize that, except as specifically contemplated by the Transaction Agreementsin this Agreement, from the date of this Agreement to until the Effective Time, Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of Prize, except as set forth on the CompanyParent Disclosure Schedule:
(a) None of the Parent Companies will (i) amend its certificate or articles of incorporation, bylaws or other organizational documents; (Aii) split, combine or reclassify any of its outstanding capital stock; (iii) declare, set aside or pay any dividends onor other distributions (whether payable in cash, property or securities) with respect to its capital stock; (iv) issue, sell or agree to issue or sell any securities or other equity interests, including its capital stock, any rights, options or warrants to acquire its capital stock, or make any other distributions in respect of, any of securities convertible into or exchangeable or exercisable for its capital stock (in other than shares of Parent Common Stock issued pursuant to the case of Parent) or membership interests (in the case of Sub), (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) or issue or authorize the issuance exercise of any other securities in respect of, in lieu Parent Warrant outstanding on the date of or in substitution for shares of its capital stock this Agreement); (in the case of Parent) or membership interests (in the case of Sub), (Cv) purchase, cancel, retire, redeem or otherwise acquire any shares of its outstanding capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or other equity interests; (Dvi) adopt a plan of complete merge or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;
(iii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(iv) acquire or agree to acquire (A) by merging or consolidating consolidate with, or by purchasing any equity interest in transfer all or portion substantially all of the its assets ofto, or by any other mannerPerson; (vii) liquidate, wind-up or dissolve (or suffer any business liquidation or any corporation, partnership, joint venture, association or other business organization or division thereof dissolution); or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (Cviii) enter into any employmentcontract, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement commitment or commitment to or relating arrangement with respect to any labor union of the foregoing.
(b) None of the Parent Companies will (i) acquire any corporation, partnership or other business entity or any Parent Benefit Plan interest therein (other than interests in joint ventures, joint operation or ownership arrangements or tax partnerships acquired in the ordinary course of business) having an acquisition price in excess of $3,000,000; (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(viiii) sell, lease (as lessor or lessee)sublease, license transfer or otherwise dispose of or subject mortgage, pledge or otherwise encumber any Oil and Gas Interests of Parent that were assigned a value in the Reserve Data Value in excess of $3,000,000, individually, or any other assets that have a value at the time of such sale, lease, sublease, transfer or disposition in excess of $3,000,000, individually (except that this clause shall not apply to the sale of Hydrocarbons in the ordinary course of business or to encumbrances under the Parent Bank Credit Agreement); (iii) farm-out any Lien Oil and Gas Interest of Parent having a value in excess of $3,000,000 or interest therein; (iv) sell, transfer or otherwise dispose of or mortgage, pledge or otherwise encumber any properties securities of any other Person (including any capital stock or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt other securities or warrants or other rights to acquire equity interest in any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or Parent Subsidiary); (Bv) make any material loans, advances or capital contributions to, or investments in, any other person;
Person (ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge loans or satisfaction of liabilities advances in the ordinary course of business consistent with past practice, (ybusiness) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not an aggregate amount in excess of $100,000 3,000,000; (vi) enter into any Parent Material Agreement or any other agreement not terminable by any of the Parent Companies upon notice of 30 days or less and without penalty or other obligation; or (vii) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing.
(c) None of the Parent Companies will (i) permit to be outstanding at any time under the Parent Bank Credit Agreement indebtedness for borrowed money in excess of $160,000,000; (ii) incur any indebtedness for borrowed money other than under trade credit vendor lines not exceeding $15,000,000 in the aggregate or under the Parent Bank Credit Agreement; (iii) incur any other obligation or liability (other than liabilities incurred in the ordinary course of business); (iv) assume, endorse (other than endorsements of negotiable instruments in the ordinary course of business), guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the liabilities or obligations of any other Person in an amount in excess of $500,000; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing.
(d) The Parent Companies will operate, maintain and otherwise deal with the Oil and Gas Interests of Parent in accordance with good and prudent oil and gas field practices and in accordance with all applicable oil and gas leases and other contracts and agreements and all applicable laws, rules and regulations.
(e) None of the Parent Companies shall voluntarily resign, transfer or otherwise relinquish any right it has as of the date of this Agreement, as operator of any Oil and Gas Interest of Parent, except as required by law, regulation or contract, except to the extent such action would not be reasonably likely to have a Material Adverse Effect on Parent.
(f) None of the Parent Companies will (i) enter into, or otherwise become liable or obligated under or pursuant to: (1) any employee benefit, pension or other plan (whether or not subject to ERISA), (2) any other stock option, stock purchase, incentive or deferred compensation plan or arrangement or other fringe benefit plan, or (3) any consulting, employment, severance, termination or similar agreement with any Person, or amend or extend any such plan, arrangement or agreement; (ii) except for payments made pursuant to the Prize Extraordinary Transaction Compensation Policy any Parent Employee Benefit Plan or any other plan, agreement or arrangement described in the Parent Disclosure Schedule, grant, or otherwise become liable for or obligated to pay, any severance or termination payment, bonus or increase in compensation or benefits (other than payments, bonuses or increases that are mandated by the terms of agreements existing as of the date hereof or that are paid in the ordinary course of business, consistent with past practices, and not individually or in the aggregate material in amount) to, or forgive any indebtedness of, any employee or consultant of any of the Parent Companies; or (iii) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
(g) None of the Parent Companies will create, incur, assume or permit to exist any Lien on any of its assets, except for Permitted Encumbrances.
(h) The Parent Companies will (i) keep and maintain accurate books, records and accounts; (ii) maintain in full force and effect the policies or binders of insurance described in Section 4.22; (iii) pay all Taxes, assessments and other governmental charges imposed upon any of their assets or with respect to their franchises, business, income or assets before any penalty or interest accrues thereon; (iv) pay all material claims (including claims for labor, services, materials and supplies) that have become due and payable and which by law have or may become a Lien upon any of their assets prior to the time when any penalty or fine shall be incurred with respect thereto or any such Lien shall be imposed thereon; and (v) comply in all material respects with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority, obtain or take all Governmental Actions necessary in the operation of their businesses, and comply with and enforce the provisions of all Parent Material Agreements, including paying when due all rentals, royalties, expenses and other liabilities relating to their businesses or assets; provided, however, Parent will not be in violation of this Section 5.1(h) if any of the Parent Companies incurs obligations for penalties and interest in connection with gross production tax reporting in the ordinary course of business; and provided further, that the Parent Companies may contest the imposition of any such Taxes, assessments and other governmental charges, any such claim, or the requirements of any applicable law, rule, regulation or order or any Parent Material Agreement if done so in good faith by appropriate proceedings and if adequate reserves are established in accordance with GAAP.
(i) The Parent Companies will at all times preserve and keep in full force and effect their corporate existence and rights and franchises material to their performance under this Agreement, except where the failure to do so would not have a Material Adverse Effect on Parent.
(j) None of the Parent Companies will:
(i) engage in any practice, take any action or permit by inaction any of the representations and warranties contained in Article 4 to become untrue, except as specifically permitted under other provisions of this Section 5.1(j);
(ii) approve or implement budgets for general and administrative expenses of the Parent Companies (including salary, bonuses, general operating and overhead expenses) or budgets for Capital Expenditures of the Parent Companies, or incur expenses or disburse funds for any of such purposes except pursuant to the budgets which have been approved by Prize or revisions to such budgets which are approved by Prize, such approval not to be unreasonably withheld (any budgets which have been or are approved as required herein are referred to as "Approved Budgets");
(iii) except to the extent already included in an Approved Budget, enter into any agreements or other arrangements with respect to, or make any payments, incur any expenses or disburse any funds for (1) any Capital Project, the completion or full capitalization of which can reasonably be expected to require the Parent Companies to expend, in the aggregate, (B) cancel any indebtedness or waive any claims or rights in excess of value $5,000,000, or (C2) waive any Capital Project for the benefits ofexploration of Oil and Gas Interests with undeveloped reserves (including the acquisition of leasehold interests and seismic data, or agree the drilling of wells and all related costs and exp▇▇▇▇▇) which can reasonably be expected to modify require the Parent Companies to expend, in any mannerthe aggregate, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any in excess of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K$2,500,000; or
(xiiiiv) take, authorize make any of, Capital Expenditure or commit or agree to take any of, general and administrative expense payment which exceeds by more than 20 percent the foregoing actionsamount set forth in the appropriate line item for such expenditure in an Approved Budget.
Appears in 1 contract
Conduct of Business by Parent. Except for matters set forth in the Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, from From the date of this Agreement to the Effective Time Parent shall, and shall cause Sub to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated by the Transaction Agreements, from the date of this Agreement to the Effective TimeClosing Date, Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of the Shareholder and the Company:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock (in the case of Parent) or membership interests (in the case of Sub)stock, (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) 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 (in the case of Parent) or membership interests (in the case of Sub)stock, (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Subof, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the its corporate structure or ownership of Parent or Substructure;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub)stock, (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such sharesshares of its capital stock (other than vesting of currently outstanding options and warrants pursuant to their terms), Voting Parent Debt, voting securities or convertible or exchangeable securities or (DC) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;
(iii) amend the Parent Charter, Charter or the Parent By-laws or the comparable organizational documents of SubBylaws other than as contemplated herein;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing any equity interest in or a substantial portion of the assets of, or by any other manner, any equity interest in or business or of any corporation, partnership, joint venture, association or other business organization or division thereof thereof;
(v) sell, transfer, deliver, lease, license, sublicense, mortgage, pledge, encumber or otherwise dispose of (in whole or in part), or create, incur, assume or allow any Lien, other than Parent Permitted Liens;
(vi) (A) enter into or amend any material Parent Contract; or (B) modify, amend, transfer, terminate or waive any assetsrights under any material Parent Contract;
(vii) enter into or amend any material Parent Contract, transaction, indebtedness or other arrangement in which any of Parent’s officers, directors, shareholders or other affiliates, or any of their respective affiliates or family members have a direct or indirect financial interest;
(A) grant except with respect to any employeecontinued advances pursuant to the terms of the Wachovia Obligations, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parentsecurities, guarantee any debt securities of another personPerson, enter into any “keep well” or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other personPerson or (iii) create, incur, assume or guarantee any material capitalized lease obligations;
(ix) make establish, adopt, enter into or amend, modify or terminate any Parent Benefit Plans, including any bonus, profit sharing, compensation, stock option, warrant, pension, retirement, deferred compensation, employment, severance, termination, change in control, indemnification, retention bonus or other employee benefit plan, agreement, trust fund or arrangement for the benefit or welfare of any officer, director, shareholder, employee, consultant or other individual performing services for Parent, (ii) agree to any increase in the compensation or benefits, including cash, equity, and other forms of compensation payable or to become payable to, or any increase in the contractual term of employment of, any officer, director, shareholder or consultant or salaried employee (iii) pay any benefit not required by any Parent Benefit Plan or other plan or agreement, (iv) establish, adopt, enter into or amend in any respect any collective bargaining agreement, or any other agreement or commitment to or relating to any labor union, or (v) make any new capital expenditure determination under any collective bargaining agreement, or expendituresany other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(x) make do or omit to take any Tax election action, or settle permit any omission to act, that would cause a breach or compromise default under, or the termination, modification or amendment of, any Tax liability material Parent Contract, or refundany government license, material Permit or other material authorization;
(xi) (A) incuramend, paymodify, discharge extend, renew or satisfy terminate any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits oflease, or agree to modify in enter into any mannernew lease, sublease, license or other agreement for the use or occupancy of any confidentiality, standstill or similar agreement to which Parent is a partyreal property;
(xii) after the date hereof enter into make or omit to take any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that action which would be required reasonably anticipated to be disclosed pursuant to Item 404 of SEC Regulation S-Khave a Parent Material Adverse Effect;
(xiii) form, establish or acquire any Subsidiary; or
(xiiixiv) take, authorize any ofauthorize, or commit or agree to take any of, of the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. Except for matters set forth in the Parent Disclosure Letter or otherwise contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time Parent shall, and shall cause Sub to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated by the Transaction Agreements, from the date of this Agreement to the Effective Time, Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of the Company:
(i) (A) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock (in the case of Parent) or membership interests (in the case of Sub), (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) 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 (in the case of Parent) or membership interests (in the case of Sub), (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “"phantom” " stock, “"phantom” " stock rights, stock appreciation rights or stock-based performance units;
; (iii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or
(xiii) take, authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Conduct of Business by Parent. Except for matters set forth in the Pending Closing. Parent Disclosure Letter or otherwise contemplated by the Transaction Agreementscovenants and agrees with GreenHunter that, from the date of this Agreement to until the Effective Time Time, each of the Parent shall, and shall cause Sub to, Companies will conduct its business only in the usualordinary and usual course consistent with past practices. Notwithstanding the preceding sentence, regular Parent covenants and ordinary course in substantially the same manner as previously conducted. In addition, and without limiting the generality of the foregoingagrees with GreenHunter that, except as specifically contemplated by the Transaction Agreementsin this Agreement, from the date of this Agreement to until the Effective Time, Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of GreenHunter, except as set forth on the CompanyParent Disclosure Schedule:
(a) None of the Parent Companies will (i) amend its certificate or articles of incorporation, bylaws or other organizational documents; (Aii) split, combine or reclassify any of its outstanding capital stock; (iii) declare, set aside or pay any dividends onor other distributions (whether payable in cash, property or securities) with respect to its capital stock; (iv) issue, sell or agree to issue or sell any securities or other equity interests, including its capital stock, any rights, options or warrants to acquire its capital stock, or make any other distributions in respect of, any of securities convertible into or exchangeable or exercisable for its capital stock (in other than shares of Parent Common Stock issued pursuant to the case exercise of Parent) or membership interests (in any Parent Warrant outstanding on the case date of Subthis Agreement), other than an equity financing of up to $7.5 million on terms that are approved by the Board of Directors of Parent and at a price per share that is not less 70% of the average historic trading price of Parent Common Stock during the 45 day period prior to such financing; (B) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) 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 (in the case of Parent) or membership interests (in the case of Sub), (Cv) purchase, cancel, retire, redeem or otherwise acquire any shares of its outstanding capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or other equity interests; (Dvi) adopt a plan of complete merge or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliver, sell or grant (A) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units;
(iii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(iv) acquire or agree to acquire (A) by merging or consolidating consolidate with, or by purchasing any equity interest in transfer all or portion substantially all of the its assets ofto, or by any other mannerPerson; (vii) liquidate, wind-up or dissolve (or suffer any business liquidation or any corporation, partnership, joint venture, association or other business organization or division thereof dissolution); or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (Cviii) enter into any employmentcontract, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement commitment or commitment to or relating arrangement with respect to any labor union of the foregoing.
(b) None of the Parent Companies will (i) acquire any corporation, partnership or other business entity or any Parent Benefit Plan interest therein having an acquisition price in excess of $7.5 million, individually or in the aggregate; (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(viiii) sell, lease (as lessor or lessee)sublease, license transfer or otherwise dispose of or subject to mortgage, pledge or otherwise encumber any Lien asset having a value in excess of $7.5 million, individually or in the aggregate; (iii) sell, transfer or otherwise dispose of or mortgage, pledge or otherwise encumber any properties securities of any other Person (including any capital stock or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt other securities or warrants equity interest in any Parent Subsidiary); (iv) organize or other rights to acquire form any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoingsubsidiary, or (B) make any material loans, advances or capital contributions to, or investments in, any other person;
Person (ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge loans or satisfaction of liabilities advances in the ordinary course of business consistent with past practice, (ybusiness) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not an aggregate amount in excess of $100,000 500,000, individually or in the aggregate; (v) enter into any Parent Material Agreement or any other agreement not terminable by any of the Parent Companies upon notice of 30 days or less and without penalty or other obligation; or (vii) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing.
(c) None of the Parent Companies will (i) incur any indebtedness for borrowed money other than under trade credit vendor lines not exceeding $7.5 million individually or in the aggregate; (ii) incur any other obligation or liability (other than liabilities incurred in the ordinary course of business); (iii) assume, endorse (other than endorsements of negotiable instruments in the ordinary course of business), guarantee or otherwise become liable or responsible (whether directly, contingently or otherwise) for the liabilities or obligations of any other Person in an amount in excess of $500,000 individually or in the aggregate; or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing.
(d) None of the Parent Companies will (i) enter into, or otherwise become liable or obligated under or pursuant to: (1) any employee benefit, pension or other plan (whether or not subject to ERISA), (2) any other stock option, stock purchase, incentive or deferred compensation plan or arrangement or other fringe benefit plan, except pursuant to any Parent Employee Benefit Plan or any other plan, agreement or arrangement described in the Parent Disclosure Schedule, or (3) any consulting, employment, severance, termination or similar agreement with any Person, or amend or extend any such plan, arrangement or agreement; (ii) except for payments made pursuant to any Parent Employee Benefit Plan or any other plan, agreement or arrangement described in the Parent Disclosure Schedule, grant, or otherwise become liable for or obligated to pay, any severance or termination payment, bonus or increase in compensation or benefits (other than payments, bonuses or increases that are mandated by the terms of agreements existing as of the date hereof or that are paid in the ordinary course of business, consistent with past practices, and not individually or in the aggregate material in amount) to, or forgive any indebtedness of, any employee or consultant of any of the Parent Companies; or (iii) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
(e) None of the Parent Companies will create, incur, assume or permit to exist any Lien on any of its assets, except for Permitted Encumbrances.
(f) The Parent Companies will (i) keep and maintain accurate books, records and accounts; (ii) maintain in full force and effect the policies or binders of insurance described in Section 4.22; (iii) pay all Taxes, assessments and other governmental charges imposed upon any of their assets or with respect to their franchises, business, income or assets before any penalty or interest accrues thereon; (iv) pay all material claims (including claims for labor, services, materials and supplies) that have become due and payable and which by law have or may become a Lien upon any of their assets prior to the time when any penalty or fine shall be incurred with respect thereto or any such Lien shall be imposed thereon; and (v) comply in all material respects with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority, obtain or take all Governmental Actions necessary in the operation of their businesses, and comply with and enforce the provisions of all Parent Material Agreements, including paying when due all rentals, royalties, expenses and other liabilities relating to their businesses or assets; provided, however, that the Parent Companies may contest the imposition of any such Taxes, assessments and other governmental charges, any such claim, or the requirements of any applicable law, rule, regulation or order or any Parent Material Agreement if done so in good faith by appropriate proceedings and if adequate reserves are established in accordance with GAAP.
(g) The Parent Companies will at all times preserve and keep in full force and effect their corporate existence and rights and franchises material to their performance under this Agreement, except where the failure to do so would not have a Material Adverse Effect on Parent.
(h) None of the Parent Companies will:
(i) engage in any practice, take any action or permit by inaction any of the representations and warranties contained in Article 4 to become untrue, except as specifically permitted under other provisions of this Section 5.1(h);
(ii) approve or implement budgets for general and administrative expenses of the Parent Companies (including salary, bonuses, general operating and overhead expenses) or budgets for Capital Expenditures of the Parent Companies, or incur expenses or disburse funds for any of such purposes except pursuant to the budgets which have been disclosed to GreenHunter or revisions to such budgets which are approved by GreenHunter, such approval not to be unreasonably withheld (any budgets which have been disclosed to GreenHunter or modifications thereto which are approved as required herein are referred to as “Approved Parent Budgets”);
(iii) except to the extent already included in an Approved Parent Budget, enter into any agreements or other arrangements with respect to, or make any payments, incur any expenses or disburse any funds for any Capital Project, the completion or full capitalization of which can reasonably be expected to require the Parent Companies to expend, in the aggregate, (B) cancel any indebtedness or waive any claims or rights in excess of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party$2.5 million;
(xiiiv) after make any Capital Expenditure or general and administrative expense payment which exceeds by more than 20 percent the date hereof enter into any transaction with, amount set forth in the appropriate line item for such expenditure in an Approved Parent Budget.
(i) None of Parent or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required its Affiliates will take, cause or permit to be disclosed pursuant taken any action that could reasonably be expected to Item 404 pose a material risk to the status of SEC Regulation S-K; or
(xiii) take, authorize any of, or commit or agree to take any of, the foregoing actionsMerger as a "reorganization" within the meaning of Code section 368(a).
Appears in 1 contract
Conduct of Business by Parent. Except for matters set forth in Section 5.2 of the Parent Disclosure Letter Schedule or otherwise as expressly contemplated by the Transaction Agreementsthis Agreement or as required by applicable Law, from the date of this Agreement to the Effective Time Time, Parent shallwill, and shall will cause Sub each of its Subsidiaries to, conduct its business in the usual, regular and ordinary course in substantially consistent with past practice and, to the same manner as previously conductedextent consistent therewith, use commercially reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and maintain its relationships with customers, suppliers, licensors and others having business dealings with them. In addition, and without limiting the generality of the foregoing, except as for matters set forth in Section 5.2 of the Parent Disclosure Schedule or otherwise expressly contemplated by the Transaction Agreementsthis Agreement or as required by applicable Law, from the date of this Agreement to the Effective Time, Parent shall will not, and shall will not permit Sub any of its Subsidiaries to, do any of the following without the prior written consent of the Company:
(ia) (Ai) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock (in the case stock, other than dividends and distributions by a direct or indirect wholly owned Subsidiary of Parent) or membership interests (in the case of Sub)Parent to its parent company, (Bii) split, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) 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 stock, or (in the case of Parent) or membership interests (in the case of Sub), (Ciii) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) Parent or membership interests (in the case any of Sub) its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Subsecurities;
(iib) issue, deliver, sell or grant (Ai) any shares of its capital stock (in the case of Parent) or any of its membership interests (in the case of Sub), (B) any Voting Parent Debt or other voting securities, (Cii) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Parent Debt, voting securities or convertible or exchangeable securities securities, or (Diii) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than (A) the issuance of Parent Common Stock pursuant to the exercise or settlement of any equity award granted prior to the date hereof and (B) the issuance of equity awards to directors, officers and employees of Parent or its Subsidiaries in the ordinary course of business consistent in all material respects with past practice;
(iiic) (i) amend any charter or organizational documents of any Subsidiary of Parent in any manner that would reasonably be expected to have an adverse effect on any shareholder of Parent or (ii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of SubCharter Documents;
(iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
(vid) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of ParentParent or any of its Subsidiaries, except insofar as may have been required by a change in GAAP;
(viie) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Parent, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition new line of another person or enter into any arrangement having the economic effect of any business outside of the foregoing, existing business of Parent or (B) make any loans, advances or capital contributions to, or investments in, any other person;
(ix) make or agree to make any new capital expenditure or expenditures;
(x) make any Tax election or settle or compromise any Tax liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities in the ordinary course of business consistent with past practice, (y) liabilities for reasonable fees and expenses incurred by Parent in connection with the Transactions and (z) the payment, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-Kits Subsidiaries; or
(xiiif) take, authorize any of, or commit or agree to take any of, the foregoing actions. Nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct the operations of Parent or any of its Subsidiaries prior to the Effective Time. Prior to the Effective Time, Parent will 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: Transaction Agreement (Dover Downs Gaming & Entertainment Inc)
Conduct of Business by Parent. Except for matters set forth in the Parent Disclosure Letter as required by applicable law or regulation and except as otherwise contemplated by this Agreement, until the Transaction Agreements, from earlier of the date termination of this Agreement to or the Effective Time Time, Parent shall, and shall cause Sub to, its subsidiaries to conduct its business their respective businesses in the usual, regular and ordinary course and consistent with past practices. Except as set forth in substantially Section 5.4 of the same manner Parent Disclosure Schedule, as required by applicable law or regulation and except as otherwise contemplated by this Agreement or except as previously conducted. In addition, and without limiting the generality of the foregoing, except as contemplated consented to by the Transaction AgreementsCompany, from in writing, after the date of this Agreement to the Effective Time, hereof Parent shall not, and shall not permit Sub to, do any of the following without the prior written consent of the Companyits subsidiaries to:
(i) (A) declareamend or otherwise change its certificate of incorporation or by-laws, set aside other than to increase the number of authorized shares of Parent Common Stock or pay any dividends onParent preferred stock, or make any other distributions in respect ofto otherwise implement the terms and conditions of this Agreement, any of its capital stock (in the case of Parent) or membership interests (in the case of Sub), as permitted by this Agreement;
(B) splitissue, combine or reclassify any of its capital stock (in the case of Parent) or membership interests (in the case of Sub) or issue sell, pledge, dispose of, encumber or authorize the issuance issuance, sale, pledge disposition, grant or encumbrance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock (in the case of Parent) or membership interests (in the case of Sub), (C) purchase, redeem or otherwise acquire any shares of capital stock (in the case of Parent) or membership interests (in the case of Sub) or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities or (D) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization, or other reorganization of Parent or Sub, or alter through merger, liquidation, reorganization or restructuring or in any other fashion the corporate structure or ownership of Parent or Sub;
(ii) issue, deliver, sell or grant (Ai) any shares of its capital stock of any class, or options, warrants, convertible securities or other rights of any kind to acquire shares of such capital stock, or any other ownership interest thereof, other than (x) any issuance in the case connection with a Qualified Financing, (y) any issuance pursuant to any outstanding security or agreement of Parent, or (z) any issuance or sale pursuant to any plan for or agreement with any officer, director or employee of Parent; or (ii) any of its membership interests (assets, tangible or intangible, except pursuant to contracts or agreements identified in the case of Sub), (B) any Voting Parent Debt or other voting securities, Disclosure Schedule;
(C) declare, set aside, make or pay any securities convertible into dividend or exchangeable forother distribution, payable in cash, stock, property or any optionsotherwise, warrants or rights with respect to acquireits capital stock, any such sharesexcept, Voting Parent Debtif at all, voting securities or convertible or exchangeable securities or with respect to shares which may be issued in a Qualified Financing;
(D) (i) reclassify, combine, split, or subdivide, directly or indirectly, any “phantom” of its capital stock, “phantom” stock rightsor (ii) redeem, stock appreciation rights purchase or otherwise acquire, directly or indirectly, any of its capital stock-based performance units, except from any officer, director or employee upon termination of such officer, director or employee;
(iii) amend the Parent Charter, the Parent By-laws or the comparable organizational documents of Sub;
(ivi) acquire (including, without limitation, for cash or agree to acquire (A) shares of stock, by merging or consolidating withmerger, consolidation, or by purchasing acquisition of stock or assets) any equity interest in or portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association partnership or other business organization or division thereof or (B) any assets;
(A) grant to any employee, executive officer or director of Parent any increase in compensation, (B) grant to any employee, executive officer or director of Parent any increase in severance or termination pay, (C) enter into any employment, consulting, indemnification, severance or termination agreement with any employee, executive officer or director of Parent, (D) establish, adopt, enter into or amend in any respect any collective bargaining agreement, any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any determinations under investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any collective bargaining agreement, property or assets of any other agreement or commitment to or relating to any labor union or any Parent Benefit Plan;
person, (vi) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of Parent, except insofar as may have been required by a change in GAAP;
(vii) sell, lease (as lessor or lessee), license or otherwise dispose of or subject to any Lien any properties or assets;
(viii) (Aii) incur any indebtedness for borrowed money other than pursuant to agreements disclosed in the Parent Disclosure Schedule, or guarantee any such indebtedness of another person, issue or sell any debt securities other than pursuant to agreements disclosed in the Parent Disclosure Schedule or warrants assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances other rights than pursuant to acquire any debt securities licensing/development agreements entered into in the ordinary course of Parent's business, guarantee any debt securities of another personconsistent with past practice, or (iii) enter into any “keep well” or other agreement new Parent Contract not otherwise permitted pursuant to maintain this Agreement;
(F) make any financial statement condition of another person capital expenditure or enter into any arrangement having the economic effect of any contract or commitment therefore other than pursuant to licensing/development agreements disclosed in Section 4.6 of the foregoing, or (B) make any loans, advances or capital contributions to, or investments in, any other personParent Disclosure Schedule;
(ixG) make amend, terminate or agree to make extend any new capital expenditure or expendituresParent Contract;
(xH) make delay or accelerate payment of any Tax election account payable or settle other liability of the Company beyond or compromise any Tax in advance of its due date or the date when such liability or refund;
(xi) (A) incur, pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge or satisfaction of liabilities would have been paid in the ordinary course of business consistent with past practice;
(I) take any action, or permit any event or condition to occur or exist, which would cause any representation or warranty of Parent to be untrue; or
(yI) liabilities agree, in writing or otherwise, to take or authorize any of the foregoing actions or any action which would make any representation or warranty contained in Article IV untrue or incorrect. Notwithstanding the foregoing, and anything to the contrary in this Agreement, the parties acknowledge and agree that Parent may negotiate, execute, deliver and perform agreements to establish customary benefit and compensation arrangements for reasonable fees its officers, directors and expenses incurred by Parent employees, appoint additional officers or directors and hire new employees and enter into customary agreements with them, enter in to customary arrangements to obtain insurance, enter into formal arrangements concerning its occupancy and use of its current headquarters space in New York, New York, amend, create and adopt such corporate governance policies, procedures, rules and regulations, as may be appropriate in connection with Parent's listing application or SOXA, take actions which are appropriate or necessary to enhance the Transactions corporate staffing and operations of Parent, and take actions which are appropriate or necessary to memorialize the registration rights of Parent's stockholders as heretofore disclosed to Company's management (each of the foregoing, a "Permitted Parent Action"), and no such Permitted Parent Action shall be deemed to breach any Parent representation, warranty, covenant or agreement in this Agreement, provided, that no such Permitted Parent Action shall have a material adverse effect on Parent and that Parent shall notify the Company of each such Permitted Parent Action. In appointing officers or directors between the date of this Agreement and the Closing Date pursuant to this paragraph, Parent shall only appoint, if any at all, (i) independent directors, (ii) other directors to replace existing directors, and (ziii) the paymentone or more officers to replace functions currently performed by any officer or officers being replaced. In no event will any contract with any officer be in an amount which individually, discharge or satisfaction of liabilities existing on the date hereof for general administrative expenses not in excess of $100,000 taken together with all other contracts with any such newly appointed officers, in the aggregate, (B) cancel any indebtedness or waive any claims or rights of value or (C) waive the benefits of, or agree is material to modify in any manner, any confidentiality, standstill or similar agreement to which Parent is a party;
(xii) after the date hereof enter into any transaction with, or enter into any agreement, arrangement or understanding with, directly or indirectly, any of Parent’s affiliates that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K; or
(xiii) take, authorize any of, or commit or agree to take any of, the foregoing actions.
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