Conduct of Business by Parent. During the period from the date of this Agreement until the earlier to occur of the termination of this Agreement or the Effective Time, except as contemplated by this Agreement, unless the Company has consented in writing thereto, which consent shall not be unreasonably withheld, Parent, (i) shall use its reasonable commercial efforts, and shall cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact its respective business organizations and goodwill, keep available the services of its respective officers and employees and maintain satisfactory relationships with those Persons having business relationships with it; (ii) shall not issue any shares of capital stock or securities convertible into shares of its capital stock at less than the fair market value of the stock as determined based on the closing sale price of a share of Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options and warrants); (iii) shall not amend or otherwise change its Certificate of Incorporation or Bylaws; (iv) shall not split, combine, reclassify or amend the terms of any of its capital stock; (v) shall not declare, set aside or pay any dividend or distribution payable in cash, stock or property or any combination thereof with respect to shares of its capital stock; (vi) shall not take or agree to take any action which would cause a material breach of any of the representations or warranties of Parent contained in this Agreement or prevent Parent from performing or cause Parent not to perform its covenants hereunder in any material respect; (vii) shall not submit any matters to the stockholders of Parent for a vote prior to the Closing other than the Merger and other than the other matters presented to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters shall not be a condition to approval of the Merger); and (viii) take any action which to Parent's knowledge would prevent treatment of the Merger on a pooling of interests basis.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization (Showscan Entertainment Inc), Agreement and Plan of Reorganization (Iwerks Entertainment Inc), Merger Agreement (Showscan Entertainment Inc)
Conduct of Business by Parent. During the period from From and after the date hereof and prior to earlier of the Effective Time or the date, if any, on which this Agreement until the is earlier terminated pursuant to occur of the termination of this Agreement Section 7.1 and except (i) as may be required by applicable Law or the Effective Timeregulations or requirements of any stock exchange or regulatory agency or commission applicable to Parent, except (ii) as contemplated may be agreed to in writing by this Agreement, unless the Company has consented in writing thereto, (which consent shall not be unreasonably withheld, Parentdelayed or conditioned), (iii) as may be expressly contemplated or required by this Agreement or (iv) as set forth in Section 5.1 of Parent Disclosure Schedule:
(i) Ordinary Course. Parent covenants and agrees with the Company that the business of Parent and its Subsidiaries shall be conducted in, and that such entities shall not take any action except in, the ordinary course of business consistent with past practice, and, to the extent consistent therewith, Parent and its Subsidiaries shall use its commercially reasonable commercial efforts, and shall cause each of its Subsidiaries to use its reasonable commercial efforts, efforts to preserve intact its respective their present business organizations and goodwillorganizations, to keep available the services of its respective their key officers and employees employees, to preserve their assets and maintain satisfactory properties, to preserve their relationships with those Persons Governmental Entities, customers and suppliers and others having significant business relationships dealings with itthem and to comply in all material respects with all Laws, orders and permits of all Governmental Entities applicable to them; provided, however, that no action by Parent or its Subsidiaries with respect to matters specifically addressed by any provision of Section 5.1(b)(ii) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision; and
(ii) shall not issue any shares Parent agrees with the Company, on behalf of capital stock or securities convertible into shares of itself and its capital stock at less than Subsidiaries, that between the fair market value date hereof and the Effective Time, without the prior written consent of the stock as determined based on the closing sale price of a share of Parent Common Stock on the National Market System on the day preceding such issuance Company (other than pursuant to outstanding options and warrants); (iii) shall not amend or otherwise change its Certificate of Incorporation or Bylaws; (iv) shall not split, combine, reclassify or amend the terms of any of its capital stock; (v) shall not declare, set aside or pay any dividend or distribution payable in cash, stock or property or any combination thereof with respect to shares of its capital stock; (vi) shall not take or agree to take any action which would cause a material breach of any of the representations or warranties of Parent contained in this Agreement or prevent Parent from performing or cause Parent not to perform its covenants hereunder in any material respect; (vii) shall not submit any matters to the stockholders of Parent for a vote prior to the Closing other than the Merger and other than the other matters presented to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters consent shall not be a condition to approval of the Mergerunreasonably withheld, delayed or conditioned); and (viii) take any action which to Parent's knowledge would prevent treatment of the Merger on a pooling of interests basis.;
Appears in 3 contracts
Sources: Merger Agreement (Vertro, Inc.), Merger Agreement (Inuvo, Inc.), Merger Agreement (Vertro, Inc.)
Conduct of Business by Parent. During the period from (a) From and after the date of this Agreement until hereof and prior to the earlier to occur of the termination of this Agreement Effective Time or the Effective TimeTermination Date, if any, and except (i) as contemplated may be required by this Agreementapplicable Law, unless (ii) as may be agreed in writing by the Company has consented in writing thereto, (which consent shall not be unreasonably withheld, Parentdelayed or conditioned), (iiii) as may be contemplated or required by this Agreement, (iv) as contemplated by the Drop-Down Agreements or (v) as set forth in Section 5.2(a) of the Parent Disclosure Schedule, Parent covenants and agrees with the Company that the business of Parent shall be conducted in, and that Parent shall not take any action except in, the ordinary course of business and shall use its reasonable commercial efforts, and shall cause each of its Subsidiaries to use its reasonable commercial efforts, best efforts to preserve intact its respective business organizations present lines of business, maintain its rights and goodwill, keep available the services of franchises and preserve its respective officers and employees and maintain satisfactory relationships with those Persons having customers and suppliers; provided, however, that no action by Parent with respect to matters specifically addressed by any provision of Section 5.2(b) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision. Parent shall (i) promptly notify the Company of any material change in its condition (financial or otherwise) or business relationships with it; or any termination, cancellation, repudiation or material breach of any Parent Material Contract (or communications indicating that the same may be contemplated), and (ii) give prompt notice to the Company of any change, occurrence, effect, condition, fact, event, or circumstance known to Parent that is reasonably likely, individually or taken together with all other changes, occurrences, effects, conditions, facts, events and circumstances known to such party, to result in a Parent Material Adverse Effect; provided, however, that no unintentional failure by Parent to provide a required notice under the last sentence of this Section 5.2(a) with respect to any matter that would not result in a failure of the conditions set forth in Section 6.2(a) shall result in a failure of the condition set forth in Section 6.2(b).
(b) Parent agrees with the Company that between the date hereof and the Effective Time, without the prior written consent of the Company (which consent shall not issue be unreasonably withheld, delayed or conditioned), Parent:
(i) except in the ordinary course of business, shall not authorize or make any shares of capital distribution with respect to its outstanding equity securities (whether in cash, assets, partnership units, stock or other securities convertible into shares of Parent or its capital stock at less than Subsidiaries), except (A) regular quarterly cash distributions with customary record and payment dates on the fair market value Common Units not in excess of $0.625 per Common Unit per quarter, and (B) regular quarterly cash distributions with customary record and payment dates on the Series A Preferred Units not in excess of $2.00 per Series A Preferred Unit per quarter plus any accrued and unpaid distributions on the Series A Preferred Units from prior quarters;
(ii) except as otherwise permitted by this Agreement or as disclosed in Section 5.2(b)(ii) of the stock as determined based on the closing sale price Parent Disclosure Schedule, shall not adopt a plan of complete or partial liquidation or dissolution or enter into a share letter of Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options and warrants); intent or agreement in principle with respect thereto;
(iii) shall not amend or otherwise change its Certificate except as disclosed in Section 5.2(b)(iii) of Incorporation or Bylaws; (iv) the Parent Disclosure Schedule shall not split, combine, combine or reclassify or amend the terms of any of its capital stock; equity securities or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for its equity securities, except for any such transaction by a wholly owned Subsidiary of Parent which remains a wholly owned Subsidiary after consummation of such transaction;
(iv) except as disclosed in Section 5.2(b)(iv) of the Parent Disclosure Schedule, shall not adopt any amendments to its Parent Organizational Documents;
(v) except for transactions among Parent and its wholly owned Subsidiaries or among Parent’s wholly owned Subsidiaries, shall not declaredirectly or indirectly, set aside purchase, redeem or pay otherwise acquire any dividend or distribution payable in cash, stock or property equity securities of Parent or any combination thereof with respect rights, warrants or options to shares of its capital stock; acquire any such equity securities;
(vi) shall not take knowingly or agree to intentionally take any action which that would cause a reasonably be expected to make any material breach of any of the representations representation or warranties warranty of Parent contained in this Agreement or prevent Parent from performing or cause Parent not to perform its covenants Merger Sub hereunder inaccurate in any material respectrespect or that would cause the condition in Section 6.2(a) not to be met; and
(vii) shall not submit any matters to the stockholders of Parent for a vote prior to the Closing other than the Merger not, and other than the other matters presented to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters shall not be a condition permit any of its wholly owned Subsidiaries to, agree, in writing or otherwise, to approval take any of the Merger); and foregoing actions.
(viiic) take any action which to Parent's knowledge would prevent treatment For the avoidance of doubt, none of the Merger on a pooling of interests basisrestrictions contained in this Section 5.2 shall apply to ETP or its Subsidiaries.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Southern Union Co), Agreement and Plan of Merger (Energy Transfer Equity, L.P.)
Conduct of Business by Parent. During the period from (a) From and after the date of this Agreement until hereof and prior to the earlier to occur of the termination of this Agreement Effective Time or the Effective TimeTermination Date, if any, and except (i) as contemplated may be required by this Agreementapplicable Law, unless (ii) as may be agreed in writing by the Company has consented in writing thereto, (which consent shall not be unreasonably withheld, Parentdelayed or conditioned), (iiii) as may be contemplated or required by this Agreement, (iv) as contemplated by the Drop-Down Agreements or (v) as set forth in Section 5.2(a) of the Parent Disclosure Schedule, Parent covenants and agrees with the Company that the business of Parent shall be conducted in, and that Parent shall not take any action except in, the ordinary course of business and shall use its reasonable commercial efforts, and shall cause each of its Subsidiaries to use its reasonable commercial efforts, best efforts to preserve intact its respective business organizations present lines of business, maintain its rights and goodwill, keep available the services of franchises and preserve its respective officers and employees and maintain satisfactory relationships with those Persons having customers and suppliers; provided, however, that no action by Parent with respect to matters specifically addressed by any provision of Section 5.2(b) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision. Parent shall (i) promptly notify the Company of any material change in its condition (financial or otherwise) or business relationships with it; or any termination, cancellation, repudiation or material breach of any Parent Material Contract (or communications indicating that the same may be contemplated), and (ii) give prompt notice to the Company of any change, occurrence, effect, condition, fact, event, or circumstance known to Parent that is reasonably likely, individually or taken together with all other changes, occurrences, effects, conditions, facts, events and circumstances known to such party, to result in a Parent Material Adverse Effect; provided, however, that no unintentional failure by Parent to provide a required notice under the last sentence of this Section 5.2(a) with respect to any matter that would not result in a failure of the conditions set forth in Section 6.2(a) shall result in a failure of the condition set forth in Section 6.2(b).
(b) Parent agrees with the Company that between the date hereof and the Effective Time, without the prior written consent of the Company (which consent shall not issue be unreasonably withheld, delayed or conditioned), Parent:
(i) except in the ordinary course of business, shall not authorize or make any shares of capital distribution with respect to its outstanding equity securities (whether in cash, assets, partnership units, stock or other securities convertible into shares of Parent or its capital stock at less than Subsidiaries), except (A) regular quarterly cash distributions with customary record and payment dates on the fair market value Common Units not in excess of $0.625 per Common Unit per quarter, and (B) regular quarterly cash distributions with customary record and payment dates on the Series A Preferred Units not in excess of $2.00 per Series A Preferred Unit per quarter plus any accrued and unpaid distributions on the Series A Preferred Units from prior quarters;
(ii) except as otherwise permitted by this Agreement or as disclosed in Section 5.2(b)(ii) of the stock as determined based on the closing sale price Parent Disclosure Schedule, shall not adopt a plan of complete or partial liquidation or dissolution or enter into a share letter of Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options and warrants); intent or agreement in principle with respect thereto;
(iii) shall not amend or otherwise change its Certificate except as disclosed in Section 5.2(b)(iii) of Incorporation or Bylaws; (iv) the Parent Disclosure Schedule shall not split, combine, combine or reclassify or amend the terms of any of its capital stock; equity securities or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for its equity securities, except for any such transaction by a wholly owned Subsidiary of Parent which remains a wholly owned Subsidiary after consummation of such transaction;
(iv) except as disclosed in Section 5.2(b)(iv) of the Parent Disclosure Schedule, shall not adopt any amendments to its Parent Organizational Documents;
(v) except for transactions among Parent and its wholly owned Subsidiaries or among Parent’s wholly owned Subsidiaries, shall not declaredirectly or indirectly, set aside purchase, redeem or pay otherwise acquire any dividend or distribution payable in cash, stock or property equity securities of Parent or any combination thereof with respect rights, warrants or options to shares of its capital stock; acquire any such equity securities;
(vi) shall not take knowingly or agree to intentionally take any action which that would cause a reasonably be expected to make any material breach of any of the representations representation or warranties warranty of Parent contained in this Agreement or prevent Parent from performing or cause Parent not to perform its covenants Merger Sub hereunder inaccurate in any material respectrespect or that would cause the condition in Section 6.2(a) not to be met; and
(vii) shall not submit any matters to the stockholders of Parent for a vote prior to the Closing other than the Merger not, and other than the other matters presented to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters shall not be a condition permit any of its wholly owned Subsidiaries to, agree, in writing or otherwise, to approval take any of the Merger); and foregoing actions.
(viiic) take any action which to Parent's knowledge would prevent treatment For the avoidance of doubt, none of the Merger on a pooling of interests basisrestrictions contained in this Section 5.2 shall apply to ETP or its Subsidiaries.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Energy Transfer Equity, L.P.), Agreement and Plan of Merger (Southern Union Co)
Conduct of Business by Parent. During the period from the date of this Agreement until the earlier to occur (a) Except (i) for matters set forth in Section 5.2(a) of the termination of this Agreement Parent Disclosure Schedule or the Effective Time, except as otherwise expressly contemplated or required by this Agreement, unless (ii) as required by applicable Law or (iii) with the prior written consent of the Company has consented in writing thereto, (which consent shall not be unreasonably withheld, Parentconditioned or delayed), (i) shall use its reasonable commercial effortsduring the Interim Period, Parent shall, and shall cause each Parent Subsidiary to, use commercially reasonable efforts to (A) conduct its business in the ordinary course of its Subsidiaries to use its reasonable commercial efforts, to business consistent with past practice in all material respects and (B) preserve intact its respective present business organizations and goodwill, keep available the services of its respective officers and employees and maintain satisfactory their relationships with those Persons Governmental Entities, customers and suppliers and others having significant business relationships dealings with itthem; (ii) shall not issue any shares of capital stock or securities convertible into shares of its capital stock at less than the fair market value of the stock as determined based on the closing sale price of a share of provided that no action by Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options and warrants); (iii) shall not amend or otherwise change its Certificate of Incorporation or Bylaws; (iv) shall not split, combine, reclassify or amend the terms of any of its capital stock; (v) shall not declare, set aside or pay any dividend or distribution payable in cash, stock or property or any combination thereof Parent Subsidiary with respect to shares matters specifically addressed by any provision of its capital stock; (viSection 5.2(b) shall not take or agree to take any action which would cause be deemed a material breach of this Section 5.2(a) unless such action would constitute a breach of Section 5.2(b).
(b) Without limiting the generality of the foregoing, except as set forth in Section 5.2(b) of the Parent Disclosure Schedule or otherwise required or expressly contemplated by this Agreement, as required by applicable Law, or with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), during the Interim Period, Parent shall not, and shall not permit any Parent Subsidiary to, do any of the representations or warranties of Parent contained in this Agreement or prevent Parent from performing or cause Parent not to perform its covenants hereunder in any material respect; (vii) shall not submit any matters to the stockholders of Parent for a vote prior to the Closing other than the Merger and other than the other matters presented to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters shall not be a condition to approval of the Merger); and (viii) take any action which to Parent's knowledge would prevent treatment of the Merger on a pooling of interests basis.following:
Appears in 2 contracts
Sources: Merger Agreement (American Water Works Company, Inc.), Merger Agreement (Essential Utilities, Inc.)
Conduct of Business by Parent. During the period from From and after the date of this Agreement until hereof and prior to the earlier to occur of the termination of this Agreement or Effective Time and the Effective TimeTermination Date, and except (i) as contemplated may be required by this Agreementapplicable Law, unless (ii) as may be agreed to in writing by the Company has consented in writing thereto, (which consent shall not be unreasonably withheld, Parentdelayed or conditioned), (iiii) as may be expressly contemplated or required by this Agreement or (iv) as set forth in Section 5.2 of the Parent Disclosure Schedule:
(a) Parent covenants and agrees with the Company that the business of Parent and its Subsidiaries shall be conducted in, and that such entities shall not take any action except in, the ordinary course of business consistent with past practice and shall use its their reasonable commercial efforts, and shall cause each of its Subsidiaries to use its reasonable commercial efforts, best efforts to preserve intact its respective their present business organizations organizations, to maintain in effect all existing Permits, subject to prudent management of workforce and goodwillbusiness needs, to keep available the services of its respective their key officers and employees employees, to maintain their assets and maintain satisfactory properties in good working order and condition, ordinary wear and tear excepted, to preserve their relationships with those Persons Governmental Entities, customers and suppliers and others having significant business relationships dealings with itthem and to comply in all material respects with all Laws, orders and Permits of all Governmental Entities applicable to them; provided, however, that no action by Parent or its Subsidiaries with respect to matters specifically addressed by any provision of Section 5.2(b) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision; and
(b) Parent agrees with the Company, on behalf of itself and its Subsidiaries, that between the date hereof and the Effective Time, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent:
(i) shall not adopt any amendments to its articles of incorporation or bylaws or similar applicable organizational documents, and shall not permit any of its Subsidiaries, including Merger Sub, to adopt any amendments to its articles of incorporation or bylaws or similar applicable organizational documents;
(ii) shall not issue any shares of capital stock or securities convertible into shares of its capital stock at less than the fair market value of the stock as determined based on the closing sale price of a share of Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options not, and warrants); (iii) shall not amend or otherwise change its Certificate of Incorporation or Bylaws; (iv) shall not split, combine, reclassify or amend the terms of permit any of its capital stock; (v) shall not Subsidiaries to, declare, set aside or pay any dividend dividends on or make any distribution payable with respect to its outstanding shares of capital stock (whether in cash, assets, stock or property other securities of Parent or any combination thereof its Subsidiaries), except (1) the declaration and payment of quarterly cash dividends with respect to Parent Common Stock not to exceed the current dividend rate, with record dates and payment dates consistent with Parent’s past dividend practice and (2) the declaration and payment of dividends from a Subsidiary of Parent to Parent or to another wholly-owned Subsidiary of Parent;
(iii) shall not, and shall not permit any of its Subsidiaries to, split, combine, or reclassify or take similar actions with respect to any of its capital 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; , except for any such transaction in the ordinary course by a wholly-owned Subsidiary of Parent which remains a wholly-owned Subsidiary after consummation of such transaction and that does not adversely affect Parent;
(viiv) shall not, and shall not take or agree to take any action which would cause a material breach of permit any of the representations its Subsidiaries to, adopt a plan of complete or warranties partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or enter into a letter of Parent contained intent or agreement in this Agreement or prevent Parent from performing or cause Parent not to perform its covenants hereunder in any material respect; (vii) shall not submit any matters to the stockholders of Parent for a vote prior to the Closing principle with respect thereto, other than the Merger and other than any merger, consolidation, restructurings or reorganizations among Parent’s wholly-owned Subsidiaries, in each case, in the other matters presented ordinary course and that do not adversely affect Parent;
(v) except for transactions between (x) Parent and its wholly-owned Subsidiaries or (y) among Parent’s wholly-owned Subsidiaries, in each case in the ordinary course and that do not adversely affect Parent, shall not, and shall not permit any of its Subsidiaries, to the stockholders redeem, repurchase, defease, cancel or otherwise acquire any indebtedness for borrowed money of Parent concurrently or any of its Subsidiaries, other than (x) at or within 120 days of stated maturity, (y) any required amortization payments and mandatory prepayments and (z) indebtedness for borrowed money arising under the agreements disclosed in Section 5.2(b)(v) of the Parent Disclosure Schedule, in each case in accordance with the Merger terms of the instrument governing such indebtedness as in effect on the date hereof;
(vi) except as made in connection with any transaction solely between (x) Parent and a wholly-owned Subsidiary of Parent or (y) between wholly-owned Subsidiaries of Parent, in each case in the ordinary course and that do not adversely affect Parent, shall not, and shall not permit any of its Subsidiaries to, acquire or agree to acquire (whether by merger, consolidation, purchase or otherwise) any person or assets, if (A) the amount to be expended pursuant thereto (including the amount of any assumed indebtedness) exceeds $350 million in any one transaction (or series of related transactions) or $700 million in the aggregate for all such acquisitions; provided that any such acquisition would not reasonably be expected, individually or in the aggregate, to result in a downgrade of which shall be presented as separate proposals and Parent’s unsecured credit rating below investment grade or (B) any such acquisition is reasonably likely, individually or in the passage aggregate, to materially delay the satisfaction of the conditions set forth in Section 6.2(g) or Section 6.3(g) or prevent the satisfaction of such conditions;
(vii) except for (A) dispositions among Parent and its wholly-owned Subsidiaries, (B) dispositions among Parent’s wholly-owned Subsidiaries, (C) dispositions of obsolete equipment or assets or dispositions of assets being replaced, in each case in the ordinary course of business consistent with past practice, (D) dispositions by Parent or its Subsidiaries of its assets in accordance with the terms of restructuring and divestiture plans mandated by applicable local or state regulatory agencies, (E) Liens arising under existing first mortgage bond, pollution control bond, solid waste disposal bond, transition bond or other matters similar indentures and related securities and agreements of operating Subsidiaries of Parent, (F) provisions under existing credit facilities of Parent and its Subsidiaries that provide for the cash collateralization of letters of credit upon a default and (G) dispositions of accounts receivable of Subsidiaries of Parent under any accounts receivable financing, securitization, factoring or similar arrangements and Liens associated therewith, shall not, and shall not be a condition permit any of its Subsidiaries to, sell, lease, license, transfer, exchange or swap, mortgage (including securitizations), subject to approval any Lien or otherwise dispose of any material portion of its material properties or assets, including the Merger); and capital stock of Subsidiaries;
(viii) except as required by the terms of a Parent Benefit Plan set forth on Section 4.11(a) of the Parent Disclosure Schedule as of the date of this Agreement, by applicable Law or in the ordinary course of business consistent with past practice, shall not, and shall not permit any of its Subsidiaries to, (A) materially increase the compensation or other benefits (including equity-based awards), payable or provided to Parent’s directors, executive officers, managers or employees (other than as required by any applicable collective bargaining agreement), (B) enter into any employment, change of control, severance or retention agreement with any current or future employee of Parent (except (1) for agreements entered into with any newly-hired employees or replacements or as a result of promotions, in each case to the extent consistent with past practice, (2) for employment agreements terminable on less than 30 days’ notice without penalty (3) for severance agreements entered into in the ordinary course of business consistent with past practice with employees who are not executive officers, in connection with terminations of employment, (4) renewals of existing severance agreements or (5) employment or severance agreements entered into in the ordinary course of business consistent with past practice with executive officers, provided that such agreements will not result in payments solely as a result of the consummation of the Transactions), (C) establish, adopt, enter into, accelerate any rights or benefits under, or amend (other than any amendment that is immaterial or administrative in nature) any plan, policy, program or arrangement for the benefit of any current or former directors, officers or employees or any of their beneficiaries, except as permitted pursuant to clause (B) above, or (D) enter into, accelerate any rights or benefits under, amend or renew any collective bargaining agreements except in the ordinary course of business;
(ix) except for transactions (x) among Parent and its wholly-owned (directly or indirectly) Subsidiaries or (y) among Parent’s wholly-owned (directly or indirectly) Subsidiaries, in each case in the ordinary course and that do not adversely affect Parent, shall not, and shall not permit any of its Subsidiaries to, issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of its capital stock or other ownership interest in Parent or any of its Subsidiaries or any securities convertible into or exchangeable for any such shares or ownership interest, or any rights, warrants or options to acquire or with respect to any such shares of capital stock, ownership interest or convertible or exchangeable securities or take any action to cause to be exercisable any otherwise unexercisable option under any existing stock option plan (except as otherwise provided by the terms of this Agreement, as required by the terms of any Parent Benefit Plan, or the express terms of any unexercisable or unexercised options outstanding on the date hereof), other than (A) issuances of shares of Parent Common Stock in respect of any exercise of Parent Stock Options and settlement of any restricted share units, phantom shares, restricted stock or similar equity awards with respect to shares of Parent Common Stock outstanding on the date hereof or as may be granted after the date hereof as permitted under this Section 5.2(b), (B) the sale of shares of Parent Common Stock pursuant to the exercise of options exercisable into, or the vesting of awards with respect to, Parent Common Stock, to purchase Parent Common Stock if necessary to effectuate an optionee direction upon exercise or for withholding of Taxes and (C) the grant of equity compensation awards in the ordinary course of business in accordance with Parent’s customary compensation practices, provided that any such awards granted after the date hereof shall be granted on terms pursuant to which to Parent's knowledge would prevent treatment such awards shall not vest or accelerate as a result of the Merger or the occurrence of the Closing;
(x) except for transactions (x) among Parent and its wholly-owned Subsidiaries or (y) among Parent’s wholly-owned Subsidiaries, in each case in the ordinary course and that do not adversely affect Parent, shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, purchase, redeem or otherwise acquire any shares of the capital stock of any of them or any rights or options to acquire any such shares;
(xi) shall not, and shall not permit any of its Subsidiaries to, (A) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof or enter into any “keep well” or other agreement to maintain any financial condition of another person or enter into any arrangement having the economic effect of any of the foregoing (including any capital leases, “synthetic” leases or conditional sale or other title retention agreement) or issue or sell any debt securities, other than (1) in the ordinary course of business consistent with past practice, (2) indebtedness incurred by any Subsidiary of Parent under any loan permitted by clause (B) in this Section 5.2(b)(xi), (3) in connection with a refinancing of existing indebtedness on commercially reasonable terms or (4) for borrowings under Parent’s and its Subsidiaries’ existing commercial paper programs or revolving credit facilities, provided in the case of each of clauses (1) through (4) such actions are not reasonably likely to cause any two of Fitch Ratings, Ltd., Standard & Poor’s or ▇▇▇▇▇’▇ Investors Service to recognize the Parent’s corporate credit rating to be less than investment grade; or (B) other than in connection with actions permitted by Section 5.2(b)(vi) make any loans, advances or capital contributions to, or investments in, any other person, other than (1) in the ordinary course of business consistent with past practice, (2) between Parent and its wholly-owned Subsidiaries or between Parent’s wholly-owned Subsidiaries, or (3) as required pursuant to any obligation in effect as of the date of this Agreement;
(xii) shall not, and shall not permit any of its Subsidiaries to, materially change financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, SEC rule or policy or applicable Law (except for any normal purchase/normal sale designation or designation of hedge accounting relationships for derivatives);
(xiii) shall not amend or terminate the Parent Trading Policies, or take any action that materially violates the Parent Trading Policies or that causes the Net Parent Position to be materially outside the risk parameters set forth in the Parent Trading Policies;
(xiv) except (x) as required by applicable Law or (y) as would not reasonably be expected to be materially adverse to Parent and its Subsidiaries taken as a pooling whole, shall not, and shall not permit any of interests basisits Subsidiaries to, (A) settle or compromise any claim, action or proceeding relating to Taxes, (B) make, change or revoke any Tax election, except in the ordinary course of business, (C) change any methods of Tax accounting, except as required by GAAP, (D) file any amended Tax Return, (E) enter into any closing agreement affecting any Tax liability or refund or (F) extend or waive the application of any statute of limitations regarding the assessment or collection of any Tax (this clause (xiv) being the sole provision of this Section 5.2(b) governing Tax matters);
(xv) shall not, and shall not permit any of its Subsidiaries to, pay or settle any material legal proceedings, other than payments or settlements (A) that do not exceed $30 million individually or $70 million in the aggregate in any consecutive 12-month period, (B) that have become due and payable prior to the date hereof or (C) in connection with regulatory proceedings before any Governmental Entities; (provided that the exceptions set forth in clauses (A), (B) and (C) shall not apply to any proceedings arising out of or related to this Agreement or the Transactions);
(xvi) shall not, and shall not permit any of its Subsidiaries to, (A) enter into any new line of business or (B) conduct any business outside the United States except in the ordinary course of business consistent with past practice;
(xvii) shall, and shall cause its Subsidiaries, to maintain with financially responsible insurance companies (or through self-insurance not inconsistent with such party’s past practice), insurance in such amounts and against such risks and losses as are customary for companies engaged in the utility industry;
(xviii) shall not, and shall not permit its Subsidiaries to, enter into or amend any contract, or take any other action, if such contract, amendment of a contract or action would reasonably be expected to prevent or materially impede, interfere with, hinder or delay the consummation of the Merger or the Transactions; and
(xix) shall not, and shall not permit any of its Subsidiaries to, agree or commit, in writing or otherwise, to take any of the foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Allegheny Energy, Inc), Merger Agreement (Firstenergy Corp)
Conduct of Business by Parent. During Except as set forth in Section 4.01(b) of the Parent Disclosure Schedule, as otherwise expressly contemplated by this Agreement or as consented to in writing by Target, during the period from the date of this Agreement until the earlier to occur of the termination of this Agreement or the Effective Time, except as contemplated by Parent shall, and shall cause its subsidiaries to, carry on their respective businesses only in the ordinary course consistent with past practice and in compliance in all material respects with all applicable laws and regulations and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, use reasonable efforts to keep available the services of their current officers and other key employees and preserve their relationships with those persons having business dealings with them to the end that their goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing (but subject to the above exceptions), during the period from the date of this AgreementAgreement to the Effective Time, unless Parent shall not, and shall not permit any of its subsidiaries to, without the Company has consented in writing theretoprior written consent of Target, which consent shall not be unreasonably withheld, Parent, :
(i) shall use its reasonable commercial efforts, and shall cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact its respective business organizations and goodwill, keep available the services of its respective officers and employees and maintain satisfactory relationships with those Persons having business relationships with it; (ii) shall not issue any shares of capital stock or securities convertible into shares of its capital stock at less than the fair market value of the stock as determined based on the closing sale price of a share of Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options and warrants); (iii) shall not amend or otherwise change its Certificate of Incorporation or Bylaws; (iv) shall not split, combine, reclassify or amend the terms of any of its capital stock; (v) shall not declare, set aside or pay any dividend or distribution payable in cash, stock or property or any combination thereof with respect to shares of its capital stock; (vi) shall not take or agree to take any action which would cause a material breach of that would, or that is reasonably likely to, result in (x) any of the representations or and warranties of made by Parent contained in this Agreement or prevent Parent from performing or cause Parent that are qualified as to materiality becoming untrue, (y) any of such representations and warranties that are not to perform its covenants hereunder so qualified becoming untrue in any material respect; respect or (viiz) shall not submit any matters condition to the stockholders Merger set forth in Article VI not being satisfied; or
(ii) acquire any business entity, whether by merger, consolidation, stock purchase or otherwise, unless Parent's board of Parent for a vote prior to directors determines in good faith that such acquisition would not materially delay the Closing other than the Merger and other than the other matters presented to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters shall not be a condition to approval consummation of the Merger); and (viii) take any action which to Parent's knowledge would prevent treatment of the Merger on a pooling of interests basistransactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (24/7 Media Inc), Merger Agreement (Exactis Com Inc)
Conduct of Business by Parent. During the period from From and after the date of this Agreement until hereof and prior to the earlier to occur of Effective Time or the termination of Termination Date, except (w) as may be required by applicable Law, (x) as may be contemplated, permitted or required by this Agreement or the Effective Time, except as contemplated by this Framework Agreement, unless (y) as may be consented to in writing in advance by the Company has consented in writing thereto, (which consent shall not be unreasonably withheld, Parentconditioned or delayed) or (z) as set forth in Section 4.1 of the Parent Disclosure Letter, (i) shall use its reasonable commercial effortsParent shall, and shall cause each of its Subsidiaries to, conduct its business in all material respects in the ordinary course consistent with past practice and, to the extent consistent therewith, use its commercially reasonable commercial efforts, efforts to preserve intact its respective current business organizations organization, and goodwill, keep available the services of preserve its respective officers and employees and maintain satisfactory relationships with those Persons customers, suppliers and others having business relationships dealings with it, in each case in all material respects, to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time; (ii) shall not issue any shares of capital stock provided, however, that no action by Parent or securities convertible into shares of its capital stock at less than the fair market value of the stock as determined based on the closing sale price of a share of Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options and warrants); (iii) shall not amend or otherwise change its Certificate of Incorporation or Bylaws; (iv) shall not split, combine, reclassify or amend the terms of any of its capital stock; (v) shall not declare, set aside or pay any dividend or distribution payable in cash, stock or property or any combination thereof Subsidiaries with respect to shares actions taken in accordance with clauses (i) through (xv) of its capital stock; (vithis Section 4.1(b) shall not take or agree be deemed to take any action which would cause be a material breach of any this sentence unless such action would constitute a breach of such other provision. Without limiting the generality of the representations foregoing, and except (w) as may be required by applicable Law, (x) as may be contemplated, permitted or warranties of Parent contained in required by this Agreement or prevent Parent from performing or cause Parent not the Framework Agreement, (y) as may be consented to perform its covenants hereunder in any material respect; writing in advance by the Company (vii) which consent shall not submit any matters be unreasonably withheld, conditioned or delayed) or (z) as set forth in Section 4.1 of the Parent Disclosure Letter (with specific reference to the stockholders of Parent for a vote applicable subsection below), from and after the date hereof and prior to the Closing other than Effective Time or the Merger Termination Date, Parent shall not, and other than the other matters presented to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters shall not be a condition to approval permit any of the Merger); and (viii) take any action which to Parent's knowledge would prevent treatment of the Merger on a pooling of interests basis.its Subsidiaries to:
Appears in 1 contract
Sources: Framework Agreement (Misys PLC)
Conduct of Business by Parent. During the period from the date of this Agreement until the earlier to occur of the termination of this Agreement or the Effective Time, except as contemplated by this Agreement, unless the Company has consented to in writing theretoby the Company, which consent shall not be unreasonably withheld, Parent, (i) shall use its reasonable commercial effortsParent shall, and shall cause each of Parent Subsidiary to, conduct its Subsidiaries business in the usual, regular and ordinary course in substantially the same manner as previously conducted and, to the extent consistent therewith, use its all commercially reasonable commercial efforts, efforts to preserve intact its respective current business organizations and goodwillorganization, keep available the services of its respective current officers and employees and maintain satisfactory keep its relationships with those Persons customers, suppliers, licensors, licensees, distributors and others having business relationships dealings with it; (ii) them and to comply in all material respects with all Laws, Judgments and Consents of and Permits with all Governmental Entities applicable to them to the end that its goodwill and ongoing business shall not issue be impaired in any shares of capital stock or securities convertible into shares of its capital stock material respect at less than the fair market value Effective Time. In addition, and without limiting the generality of the stock as determined based on foregoing, except for matters set forth in the closing sale price Parent Disclosure Letter (with specific reference to the relevant sections of a share the covenants) or otherwise expressly contemplated by this Agreement, during the period from the date of this Agreement to the Effective Time, Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options shall not, and warrants); (iii) shall not amend or otherwise change its Certificate of Incorporation or Bylaws; (iv) shall not splitpermit any Parent Subsidiary to, combine, reclassify or amend the terms of do any of its capital stock; the following without the prior written consent of the Company (vsuch consent not to be unreasonably withheld or delayed in the case of subsections (ix), (x), (xi), (xiii) shall not and (xiv) and, to the extent applicable, subsection (xvi)):
(A) declare, set aside or pay any dividend dividends on, or distribution payable make any other distributions (whether in cash, stock or property or property) in respect of, any combination thereof with respect to of its shares of its capital stock; (vi) shall not take or agree to take any action which would cause a material breach of any of the representations or warranties of Parent contained in this Agreement or prevent Parent from performing or cause Parent not to perform its covenants hereunder in any material respect; (vii) shall not submit any matters to the stockholders of Parent for a vote prior to the Closing , other than the Merger (1) dividends and other than the other matters presented distributions by a direct or indirect wholly owned Parent Subsidiary to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters shall not be a condition to approval of the Merger); and (viii) take any action which to Parent's knowledge would prevent treatment of the Merger on a pooling of interests basis.its parent and,
Appears in 1 contract
Conduct of Business by Parent. During Pending the period from First Merger. Parent covenants and agrees that, between the date of this Agreement until and the earlier to occur of the termination of Effective Time and the date, if any, on which this Agreement or the Effective Timeis terminated pursuant to Section 8.1, except (a) as contemplated may be required by this AgreementLaw, unless (b) as may be agreed in writing by the Company has consented in writing thereto, (which consent shall not be unreasonably withheld, Parentdelayed or conditioned), (ic) shall use its reasonable commercial effortsas may be expressly contemplated or permitted pursuant to this Agreement or (d) as set forth in Section 6.2 of the Parent Disclosure Letter: (x) Parent shall, and shall cause each its Subsidiaries to, use reasonable best efforts to conduct the business of Parent and its Subsidiaries, as applicable, in the ordinary course of business and in a manner consistent with past practice in all material respects (it being agreed that those actions taken by the Parent and its Subsidiaries specifically in response to COVID-19 that are consistent in all material respects with the types of actions taken by such Persons in response to COVID-19 since the onset of COVID-19 and prior to the date of this Agreement, shall be deemed to be in all material respects in the ordinary course) (provided that (1) no action by Parent or its Subsidiaries with respect to matters specifically addressed by any other provisions of this Section 6.2 will be deemed a breach of this clause (x), unless such action would constitute a breach of one or more of such other provisions, and (2) the failure by Parent or any of its Subsidiaries to use its reasonable commercial efforts, to preserve intact its respective business organizations and goodwill, keep available the services of its respective officers and employees and maintain satisfactory relationships with those Persons having business relationships with it; (ii) shall not issue any shares of capital stock or securities convertible into shares of its capital stock at less than the fair market value of the stock as determined based on the closing sale price of a share of Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options and warrants); (iii) shall not amend or otherwise change its Certificate of Incorporation or Bylaws; (iv) shall not split, combine, reclassify or amend the terms of any of its capital stock; (v) shall not declare, set aside or pay any dividend or distribution payable in cash, stock or property or any combination thereof with respect to shares of its capital stock; (vi) shall not take or agree to take any action which would cause prohibited by clauses (a) through (l) below will not be deemed to be a material breach of any of the representations or warranties of Parent contained in this Agreement or prevent Parent from performing or cause Parent not to perform its covenants hereunder in any material respect; clause (vii) shall not submit any matters to the stockholders of Parent for a vote prior to the Closing other than the Merger and other than the other matters presented to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters shall not be a condition to approval of the Mergerx)); and (viiiy) Parent shall not, and shall not permit any of its Subsidiaries to, take any action which to Parent's knowledge would prevent treatment of the Merger on a pooling of interests basis.following actions:
Appears in 1 contract
Sources: Merger Agreement (Barings BDC, Inc.)
Conduct of Business by Parent. During the 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, Parent and each of its subsidiaries shall, except to the extent that Company shall otherwise consent in writing and except as provided in Part 5.2 of the Parent Disclosure Letter, carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance in all material respects with all applicable laws and regulations, pay its debts and Taxes when due subject to good faith disputes over such debts or Taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, licensors, licensees and others with which it has business dealings; provided, however, that nothing in this Section 5.2 shall prevent Parent or any of its subsidiaries from reviewing and pursuing any acquisition opportunities. In addition, except as permitted by the terms of this Agreement, and except as contemplated by this Agreement or provided in Part 5.2 of the Parent Disclosure Letter, without the prior written consent of Company, during the period from the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to its terms or the Effective Time, except as contemplated by this Agreement, unless the Company has consented in writing thereto, which consent Parent shall not be unreasonably withheld, Parent, (i) shall use its reasonable commercial efforts, and shall cause each of its Subsidiaries to use its reasonable commercial efforts, to preserve intact its respective business organizations and goodwill, keep available the services of its respective officers and employees and maintain satisfactory relationships with those Persons having business relationships with it; (ii) shall not issue any shares of capital stock or securities convertible into shares of its capital stock at less than the fair market value of the stock as determined based on the closing sale price of a share of Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options and warrants); (iii) shall not amend or otherwise change its Certificate of Incorporation or Bylaws; (iv) shall not split, combine, reclassify or amend the terms of any of its capital stock; (v) shall not declare, set aside or pay any dividend or distribution payable in cash, stock or property or any combination thereof with respect to shares of its capital stock; (vi) shall not take or agree to take any action which would cause a material breach of do any of the representations or warranties of Parent contained in this Agreement or prevent Parent from performing or cause Parent not to perform its covenants hereunder in any material respect; (vii) following and shall not submit permit its subsidiaries to do any matters to the stockholders of Parent for a vote prior to the Closing other than the Merger and other than the other matters presented to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters shall not be a condition to approval of the Merger); and (viii) take any action which to Parent's knowledge would prevent treatment of the Merger on a pooling of interests basis.following:
Appears in 1 contract
Sources: Merger Agreement (Ondisplay Inc)
Conduct of Business by Parent. During the period from Pre-Closing Period, Parent (which for the date purposes of this Agreement until the earlier to occur Article IV shall include Parent and each of the termination of its subsidiaries) agrees, except (i) as specifically provided in this Agreement or Article IV of the Effective Time, except as contemplated by this Agreement, unless Parent Disclosure Letter or (ii) to the extent that the Company has consented shall otherwise consent in writing thereto, which (the provision of a response to any request for such consent shall not to be unreasonably withhelddelayed), Parentto carry on its business in the ordinary course, (i) shall in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, to pay its debts and taxes when due subject to good faith disputes over such debts or taxes, to pay or perform other material obligations when due, subject to good faith disputes over such obligations and use its commercially reasonable commercial efforts, efforts consistent with past practices and shall cause each of its Subsidiaries to use its reasonable commercial efforts, policies to preserve intact its respective present business organizations and goodwillorganization, keep available the services of its respective present officers and employees and maintain satisfactory preserve its relationships with those Persons having customers, suppliers, distributors, licensors, licensees and others with which it has business relationships with it; (ii) shall not issue any shares of capital stock or securities convertible into shares of its capital stock at less than dealings. In addition to and without limiting the fair market value generality of the stock foregoing, except (x) as determined based on the closing sale price of a share of Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options and warrants); (iii) shall not amend or otherwise change its Certificate of Incorporation or Bylaws; (iv) shall not split, combine, reclassify or amend the terms of any of its capital stock; (v) shall not declare, set aside or pay any dividend or distribution payable in cash, stock or property or any combination thereof with respect to shares of its capital stock; (vi) shall not take or agree to take any action which would cause a material breach of any of the representations or warranties of Parent contained specifically provided in this Agreement or prevent Article IV of the Parent from performing Disclosure Letter or cause Parent (y) to the extent that the Company shall otherwise consent in writing (the provision of a response to any request for such consent not to perform its covenants hereunder in any material respect; (vii) be unreasonably delayed), during the Pre-Closing Period, Parent shall not submit do any matters to the stockholders of Parent for a vote prior to the Closing other than the Merger and other than the other matters presented to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters shall not be a condition to approval of the Merger); following and (viii) take shall prevent its subsidiaries from doing any action which to Parent's knowledge would prevent treatment of the Merger on a pooling following:
(a) Accelerate, amend, modify or waive any stock repurchase rights; accelerate, amend or modify the period of interests basis.exercisability or other material terms of options, warrants or restricted stock; reprice or exchange
Appears in 1 contract
Conduct of Business by Parent. During the period from From and after the date of this Agreement until hereof and prior to the earlier to occur of the termination of this Agreement or Effective Time and the Effective TimeTermination Date, and except (i) as contemplated may be required by this Agreementapplicable Law, unless (ii) as may be agreed to in writing by the Company has consented in writing thereto, (which consent shall not be unreasonably withheld, Parentdelayed or conditioned), (iiii) as may be expressly contemplated or required by this Agreement or (iv) as set forth in Section 5.2 of the Parent Disclosure Schedule:
(a) Parent covenants and agrees with the Company that the business of Parent and its Subsidiaries shall be conducted in, and that such entities shall not take any action except in, the ordinary course of business consistent with past practice and shall use its their reasonable commercial efforts, and shall cause each of its Subsidiaries to use its reasonable commercial efforts, best efforts to preserve intact its respective their present business organizations organizations, to maintain in effect all existing Permits, subject to prudent management of workforce and goodwillbusiness needs, to keep available the services of its respective their key officers and employees employees, to maintain their assets and maintain satisfactory properties in good working order and condition, ordinary wear and tear excepted, to preserve their relationships with those Persons Governmental Entities, customers and suppliers and others having significant business relationships dealings with itthem and to comply in all material respects with all Laws, orders and Permits of all Governmental Entities applicable to them; provided, however, that no action by Parent or its Subsidiaries with respect to matters specifically addressed by any provision of Section 5.2(b) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision; and
(b) Parent agrees with the Company, on behalf of itself and its Subsidiaries, that between the date hereof and the Effective Time, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), Parent:
(i) shall not adopt any amendments to its articles of incorporation or bylaws or similar applicable organizational documents, and shall not permit any of its Subsidiaries, including Merger Sub, to adopt any amendments to its articles of incorporation or bylaws or similar applicable organizational documents;
(ii) shall not issue any shares of capital stock or securities convertible into shares of its capital stock at less than the fair market value of the stock as determined based on the closing sale price of a share of Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options not, and warrants); (iii) shall not amend or otherwise change its Certificate of Incorporation or Bylaws; (iv) shall not split, combine, reclassify or amend the terms of permit any of its capital stock; (v) shall not Subsidiaries to, declare, set aside or pay any dividend dividends on or make any distribution payable with respect to its outstanding shares of capital stock (whether in cash, assets, stock or property other securities of Parent or any combination thereof its Subsidiaries), except (1) the declaration and payment of quarterly cash dividends with respect to Parent Common Stock not to exceed the current dividend rate, with record dates and payment dates consistent with Parent’s past dividend practice and (2) the declaration and payment of dividends from a Subsidiary of Parent to Parent or to another wholly-owned Subsidiary of Parent;
(iii) shall not, and shall not permit any of its Subsidiaries to, split, combine, or reclassify or take similar actions with respect to any of its capital 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; , except for any such transaction in the ordinary course by a wholly-owned Subsidiary of Parent which remains a wholly-owned Subsidiary after consummation of such transaction and that does not adversely affect Parent;
(viiv) shall not, and shall not take or agree to take any action which would cause a material breach of permit any of the representations its Subsidiaries to, adopt a plan of complete or warranties partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or enter into a letter of Parent contained intent or agreement in this Agreement or prevent Parent from performing or cause Parent not to perform its covenants hereunder in any material respect; (vii) shall not submit any matters to the stockholders of Parent for a vote prior to the Closing principle with respect thereto, other than the Merger and other than any merger, consolidation, restructurings or reorganizations among Parent’s wholly-owned Subsidiaries, in each case, in the other matters presented ordinary course and that do not adversely affect Parent;
(v) except for transactions between (x) Parent and its wholly- owned Subsidiaries or (y) among Parent’s wholly-owned Subsidiaries, in each case in the ordinary course and that do not adversely affect Parent, shall not, and shall not permit any of its Subsidiaries, to the stockholders redeem, repurchase, defease, cancel or otherwise acquire any indebtedness for borrowed money of Parent concurrently or any of its Subsidiaries, other than (x) at or within 120 days of stated maturity, (y) any required amortization payments and mandatory prepayments and (z) indebtedness for borrowed money arising under the agreements disclosed in Section 5.2(b)(v) of the Parent Disclosure Schedule, in each case in accordance with the Merger terms of the instrument governing such indebtedness as in effect on the date hereof;
(vi) except as made in connection with any transaction solely between (x) Parent and a wholly-owned Subsidiary of Parent or (y) between wholly-owned Subsidiaries of Parent, in each case in the ordinary course and that do not adversely affect Parent, shall not, and shall not permit any of its Subsidiaries to, acquire or agree to acquire (whether by merger, consolidation, purchase or otherwise) any person or assets, if (A) the amount to be expended pursuant thereto (including the amount of any assumed indebtedness) exceeds $350 million in any one transaction (or series of related transactions) or $700 million in the aggregate for all such acquisitions; provided that any such acquisition would not reasonably be expected, individually or in the aggregate, to result in a downgrade of which shall be presented as separate proposals and Parent's unsecured credit rating below investment grade or (B) any such acquisition is reasonably likely, individually or in the passage aggregate, to materially delay the satisfaction of the conditions set forth in Section 6.2(g) or Section 6.3(g) or prevent the satisfaction of such other matters shall not be a condition to approval of the Merger); conditions;
(vii) except for (A) dispositions among Parent and its wholly- owned Subsidiaries, (viiiB) take any action which to dispositions among Parent's knowledge would prevent treatment of the Merger on a pooling of interests basis.’s wholly-owned Subsidiaries,
Appears in 1 contract
Sources: Merger Agreement
Conduct of Business by Parent. During (a) Parent covenants and agrees that, during the period from the date of this Agreement until the earlier to occur of the termination of this Agreement or the Effective TimeInterim Period, except (i) to the extent required by Law, (ii) as contemplated by this Agreement, unless the Company has may be consented to in writing thereto, by Company (which consent shall not be unreasonably withheld, Parentconditioned or delayed), (iiii) shall use its reasonable commercial effortsas expressly contemplated or required pursuant to this Agreement, or (iv) as set forth in Section 7.2(a) of the Parent Disclosure Letter, Parent shall, and shall cause each of its the Parent Subsidiaries to (A) conduct its business in the ordinary course and in a manner consistent with past practice in all material respects and in compliance with Law in all material respects, and (B) use commercially reasonable efforts to (1) maintain its reasonable commercial effortsmaterial assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of Parent or any Parent Subsidiary’s control excepted), to and (2) preserve intact in all material respects its respective current business organizations and organization, goodwill, keep available the services of its respective officers ongoing businesses and employees and maintain satisfactory significant relationships with those Persons having business relationships customers, suppliers, distributors, creditors, lessors, managers, operators, tenants, residents, and other significant third parties. No action by Parent or a Parent Subsidiary with it; respect to matters set forth in any provision of Section 7.2(b) for which Company has expressly provided consent in writing shall be deemed a breach of this Section 7.2(a).
(b) Without limiting the generality of foregoing, Parent covenants and agrees that, during the Interim Period, except (i) to the extent required by Law, (ii) as may be consented to in writing by Company (which consent shall not issue in any shares of capital stock case be unreasonably withheld, conditioned or securities convertible into shares of its capital stock at less than the fair market value of the stock as determined based on the closing sale price of a share of Parent Common Stock on the National Market System on the day preceding such issuance (other than pursuant to outstanding options and warrantsdelayed); , (iii) shall not amend as expressly contemplated or otherwise change its Certificate of Incorporation required by this Agreement, or Bylaws; (iv) as set forth in Section 7.2(b) of the Parent Disclosure Letter, Parent shall not, and shall not cause or permit any Parent Subsidiary to, do any of the following:
(i) amend the Organizational Documents of Parent (excluding, for the avoidance of doubt, the Parent Charter Amendment and the Additional Parent Amendment), or any Parent Subsidiary in any material respect;
(ii) adjust, split, combine, reclassify or amend the terms subdivide any shares of any of its capital stock; , other equity or voting securities or ownership interests of Parent or any Parent Subsidiary (vother than any wholly owned Parent Subsidiary);
(iii) shall not authorize, declare, set aside or pay any dividend on or distribution payable make any other distributions (whether in cash, stock or stock, property or any combination thereof otherwise) with respect to shares of capital stock of Parent or any Parent Subsidiary or other equity or voting securities or ownership interests in Parent or any Parent Subsidiary, except for
(A) the declaration and payment of dividends or other distributions to Parent or any Parent Subsidiary by any directly or indirectly wholly owned Parent Subsidiary and (B) the declaration and payment of dividends in respect of the Series A Preferred Stock of Parent in the ordinary course;
(iv) purchase, redeem, repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity or voting interests of Parent or a Parent Subsidiary, other than (A) repurchases, withholdings, or cancellations of equity securities or awards of Parent pursuant to the terms and conditions of such equity awards, (B) in the ordinary course of business or (C) in connection with the redemption or repurchase by a wholly owned Parent Subsidiary of its own securities (but solely to the extent such securities or equity equivalents are owned by Parent or a wholly owned Parent Subsidiary);
(v) merge or consolidate with any other Person or make a material investment (whether through the acquisition of stock; , assets or otherwise) in any other Person, or make or agree to make any acquisition (including by merger, consolidation or acquisition of stock or assets) of any real property, material personal property, corporation, partnership, joint venture, limited liability company, other business organization or any division or material amount of assets thereof, if such merger, consolidation, investment, or acquisition would reasonably be expected to materially delay or prevent the consummation of the Transactions in any respect, including requiring Parent to further amend its charter (other than the Parent Charter Amendment and the Additional Parent Amendment) or requiring Parent to raise funds in order to consummate the Transactions;
(vi) shall not take enter into, renew, modify, amend or agree terminate, or waive, release, compromise or assign any rights or claims under, any Parent Material Contract (or any contract that, if existing as of the date hereof, would be a Parent Material Contract), except to take any action which would cause a material breach of the extent any of the representations or warranties of Parent contained in this Agreement foregoing would not materially delay or prevent Parent from performing or cause Parent not being able to perform its covenants hereunder in any material respect; consummate the Transactions;
(vii) shall not submit fail to maintain all financial books and records in all material respects in accordance with GAAP or make any matters material change to its methods of accounting in effect on January 1, 2025, except as required by a change in GAAP or in applicable Law, or make any change with respect to accounting policies, principles or practices unless required by GAAP or the stockholders of Parent for a vote prior to the Closing other than the Merger and other than the other matters presented to the stockholders of Parent concurrently with the Merger (all of which shall be presented as separate proposals and the passage of such other matters shall not be a condition to approval of the Merger); and SEC;
(viii) take enter into any agreement that would materially limit or otherwise materially restrict Parent or any of the Parent Subsidiaries or any of their successors from engaging in or competing in any line of business or owning property in, whether or not restricted to, any geographic area;
(ix) (A) enter into or modify in a manner materially adverse to Company any Company Tax Protection Agreement, (B) make, change or rescind any material election relating to Taxes, (C) change a material method of Tax accounting, (D) amend any material Tax Return or file any material Tax Return inconsistent with past practice other than as required by applicable Law, (E) settle or compromise any material federal, state, local or non-U.S. Tax liability, audit, claim or assessment, (F) enter into any material closing agreement related to Taxes, (G) surrender any right to claim any material Tax refund, or (H) consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment (other than in the ordinary course of business);
(x) adopt a plan of merger, complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization of Parent or any Parent Subsidiaries (including undertaking any action which to Parent's knowledge as part of a pre-closing step or restructuring that would prevent treatment result in a material increase in any Taxes, except as otherwise contemplated by this Agreement);
(xi) sell, assign, transfer, abandon, exclusively license or otherwise license outside of the Merger on a pooling ordinary course of interests basisbusiness, any material Intellectual Property of Parent or any Parent Subsidiaries; or
(xii) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract