Covenants of Parent. From the date of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective Time, without the prior written consent of the Company, Parent shall not directly or indirectly: (a) amend or modify any of the Constituent Documents of Parent; (b) (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of any of Securities of Parent, other than quarterly dividends consistent with past practice, (ii) split, combine or reclassify any Securities of Parent, (iii) issue, deliver or sell any Securities of Parent, other than (A) the issuance and delivery of shares of Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent benefit plan as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreement; (c) acquire (or permit any Parent Subsidiary to acquire) by merging or consolidating with, or by share exchange, or by purchase or by any other manner, any Person or division, business or equity interest of any Person, other than acquisitions that would not reasonably be expected to prevent or delay or impede the consummation of the transactions contemplated by this Agreement; (d) adopt or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parent; or (e) authorize, resolve, agree or commit to do any of the foregoing.
Appears in 3 contracts
Sources: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Covenants of Parent. From the date of this Agreement until the Effective Time, unless except (i) as otherwise expressly required by this Agreement, (ii) as the Company shall otherwise consent may approve in writing (which consent shall such approval not to be unreasonably withheld withheld, conditioned or delayed) or except (iii) as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable LawLetter, Parent shall, will not and shall cause each of the Parent will not permit its Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective Time, without the prior written consent of the Company, Parent shall not directly or indirectly:
(ai) amend adopt or modify propose any change in (A) Parent’s Third Amended Articles of Incorporation or Regulations or other applicable governing instruments, (B) Merger Sub’s certificate of incorporation or by-laws or other applicable governing instruments or (C) the material terms of any security of Parent, Merger Sub or any of the Constituent Documents of Parent’s Subsidiaries;
(b) (iii) declare, set aside, make or pay any dividend or other distribution (whether distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or propertyrepurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares, in each case in accordance with Parent’s past practice, and (y) Parent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans or any similar Parent plan;
(iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, securities or assets outside of the ordinary course of business with a value or purchase price in the aggregate in excess of $300 million in any transaction or series of related transactions;
(iv) issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or of any of Securities its Subsidiaries, or securities convertible or exchangeable into or exercisable for any shares of Parentsuch capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than quarterly dividends consistent with past practice, (ii) split, combine or reclassify any Securities the issuance of Parent, (iii) issue, deliver or sell any Securities of Parent, other than (A) any Parent Shares upon the issuance and delivery settlement of shares any grants made under any Parent Stock Plan or any similar Parent plan in accordance with the terms as of the date of this Agreement of those grants; (B) any securities of a Subsidiary of Parent Common to Parent or any other Subsidiary of Parent; (C) any grants under the Parent Stock pursuant to Plan, or any similar Parent plan, or in the Offer ordinary course of business or (D) as may be required by any Contracts governing indebtedness, including the Financing;
(v) (A) merge or consolidate itself or any of its Subsidiaries with any other Person or (B) restructure, reorganize or completely or partially liquidate (except for any such transactions with respect to its wholly owned Subsidiaries);
(vi) enter into any agreement with respect to the voting of its capital stock in connection with the Parent Shareholder Meeting;
(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock;
(viii) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any of its material assets, product lines or businesses or those of any of its Subsidiaries, including any equity interests of any of its Subsidiaries, except (other than with respect to equity interests of any Subsidiary of Parent) (A) in connection with goods or services provided in the ordinary course of business, (B) sales of obsolete assets, (C) for sales, leases, licenses or other dispositions of assets with a fair market value not in excess of $300 million in the aggregate, or (D) pursuant to any Parent benefit plan as Contracts in effect on prior to the date of this Agreement; provided Agreement that have been disclosed to the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant Company prior to any Parent benefit plan as in effect on the date of this Agreement;
(cix) acquire (or permit enter into any Parent Subsidiary to acquire) by merging or consolidating withnew line of business, or by share exchange, or by purchase or by fundamentally change any other manner, any Person or division, business or equity interest existing line of any Person, other than acquisitions that would not reasonably be expected to prevent or delay or impede the consummation of the transactions contemplated by this Agreement;
(d) adopt or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parentbusiness; or
(ex) authorizeagree, resolve, agree authorize or commit to do any of the foregoing.
Appears in 3 contracts
Sources: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Ak Steel Holding Corp)
Covenants of Parent. From During the date of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, period from the date of this Agreement and continuing until the Effective Time, without the prior written consent of the Company, Parent shall not, and in the case of clauses (d) and (e) and, solely as it relates to clauses (d) and (e), clause (g) shall not directly or indirectlypermit any of its Subsidiaries to:
(a) amend or modify any of the Constituent Documents of Parent;
(b) (i) declare, set asideaside or pay, or propose to declare, set aside or pay, any dividends on or make other distributions in respect of any of its share capital, options or pay any dividend or other distribution warrants (whether in cash, stock shares or property) in respect of property or any of Securities of Parent, other than quarterly dividends consistent with past practicecombination thereof), (ii) adjust, split, combine or reclassify reclassify, or propose to adjust, split, combine or reclassify, any Securities of Parentits share capital, or any other securities in respect of, in lieu of or in substitution for, shares of its share capital, (iii) issueamend or waive the terms of any option, deliver warrant or sell any Securities of Parent, other than (A) the issuance and delivery of right to acquire shares of Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent benefit plan as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Timeits share capital, or (iv) repurchase, redeem or otherwise acquire acquire, propose to repurchase, redeem or otherwise acquire, any Securities shares of Parentits share capital or any securities convertible into or exercisable for any shares of its share capital, other than acquisitions except in the case of Securities pursuant to clause (iv), (A) in the case of any Parent benefit plan “cashless exercise” provision expressly provided for under the terms of options or warrants outstanding as in effect on of the date of this AgreementAgreement or awarded or granted following the date of this Agreement in accordance with the terms of this Agreement or in connection with tax withholding upon the exercise of stock options or the vesting of restricted stock units, or (B) as required by applicable Law;
(b) except as permitted by Section 4.2(d), issue, deliver, pledge, encumber, dispose of, or sell, any shares of its share capital of any class, any Voting Debt, any share appreciation rights or any securities convertible or redeemable into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any such shares or Voting Debt, or enter into any agreement with respect to any of the foregoing, or otherwise make any changes (by combination, merger, amalgamation, scheme of arrangement, consolidation, reorganization, liquidation or otherwise) in its capital structure, other than (i) the issuance of common shares required to be issued upon the exercise or settlement of share options or other equity-related awards outstanding on the date hereof under the Parent Share Plans, (ii) equity awards under the Parent Share Plans in the amounts set forth in Section 4.2(b)(ii) of the Parent Disclosure Letter (provided that any such awards shall not be entitled to accelerated vesting in connection with the consummation of the Merger) and (iii) as permitted by Section 4.2(d);
(c) amend or propose to amend (whether by merger, amalgamation, scheme of arrangement, consolidation or otherwise) its articles of incorporation or bylaws or waive any requirement thereof;
(d) other than in connection with transactions related to its Investment Assets entered into in accordance with its Investment Policy, amalgamate, merge or consolidate with any other Person, or acquire (or permit any Parent Subsidiary agree to acquire) , by amalgamating, merging or consolidating with, by purchasing a material interest in or a material portion of the assets of, by share exchangeforming a partnership or joint venture with, or by purchase or by any other manner, any Person corporation, partnership, association or divisionother business organization or division thereof, business or equity interest of any Personmaterial assets, rights or properties, in each case, if such action, individually or together with all other than acquisitions that would not such actions, could reasonably be expected to prevent (i) prevent, inhibit or materially delay or impede the consummation of the transactions contemplated by this AgreementMerger or (ii) require Parent to issue equity having a market value in excess of $100 million;
(de) except in accordance with Section 5.4, Section 5.14 or Article VII, take any action with the knowledge and intent that it would (i) result in any of the conditions to the Merger set forth in Article VI not being satisfied or (ii) materially adversely affect the ability of the parties to obtain any of the Transaction Approvals without imposition of a Regulatory Material Adverse Effect;
(f) adopt or implement a any plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parent; orreorganization;
(eg) agree to, or make any commitment to, take, or authorize, resolve, agree or commit to do any of the foregoingactions prohibited by this Section 4.2.
Appears in 2 contracts
Sources: Merger Agreement (ALTERRA CAPITAL HOLDINGS LTD), Merger Agreement (Markel Corp)
Covenants of Parent. From the date of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing except (which consent shall not be unreasonably withheld or delayedx) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall(y) as Company may approve in writing (such approval not to be unreasonably withheld, and shall cause each of the Parent Subsidiaries toconditioned or delayed), conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except or (z) as expressly set forth in the relevant subsection of Section 5.2 6.1(b) of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective Time, without the prior written consent of the CompanyLetter, Parent shall not directly or indirectlywill not:
(ai) amend adopt or modify propose any change in its certificate of incorporation or bylaws, or the Constituent Documents terms of any security of Parent;
(bii) reclassify, split, combine, subdivide or redeem, directly or indirectly, any of its capital stock;
(iiii) declare, set aside, make or pay any dividend or other distribution (whether distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or propertyrepurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other contractual obligations of Parent and its Subsidiaries, (A) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares in an amount not in excess of the amount set forth in Section 6.1(b)(iii) of the Parent Disclosure Letter, in each case in accordance with Parent’s past practice, and (B) Parent may give effect to dividend equivalent rights with respect of to outstanding grants under the Parent Stock Plan, any of Securities of Parentsimilar Parent plan, other than quarterly dividends consistent with past practice, (ii) split, combine or reclassify any Securities of Parent, (iii) issue, deliver or sell any Securities of Parent, other than (A) the issuance and delivery of shares of Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent benefit plan as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or ;
(iv) repurchaserestructure, redeem reorganize or otherwise acquire completely or partially liquidate (except for any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreementsuch transactions among its wholly-owned Subsidiaries);
(cv) acquire (or permit any Parent Subsidiary to acquire) by merging or consolidating with, or by share exchangepurchasing a substantial portion of the assets of or equity in, or by purchase or by any other manner, any Person or division, any business or equity interest division thereof, or otherwise acquire any assets, unless such acquisition or the entering into of any Person, other than acquisitions that a definitive agreement relating to or the consummation of such transaction would not reasonably be expected to prevent (A) impose any delay beyond the End Date in the obtaining of, or delay increase in any material respect the risk of not obtaining, any authorizations, consents, orders, declarations or impede approvals of any Governmental Entity necessary to consummate the Merger or the expiration or termination of any applicable waiting or approval period, (B) increase the risk in any material respect of any Governmental Entity entering an order prohibiting the consummation of the transactions contemplated by this AgreementMerger, or (C) increase in any material respect the risk of not being able to remove any such order on appeal or otherwise;
(dvi) adopt issue, sell, pledge, dispose of, grant, transfer, encumber, or implement a plan authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of complete its capital stock or partial liquidation of any its Subsidiaries, or a dissolutionsecurities convertible or exchangeable into or exercisable for any shares of such capital stock, restructuringor any options, recapitalization warrants or other reorganization rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the settlement of any grants made under any Parent Stock Plan, or any similar Parent plan; (B) any securities of a Subsidiary of Parent to Parent or any other Subsidiary of Parent; or (C) any grants under the Parent Stock Plan, or any similar Parent plan;
(vii) take or omit to take any action if such action or omission would reasonably be expected to result in any of the conditions set forth in Article VII not being satisfied; or
(eviii) authorizeagree, resolve, agree authorize or commit to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Conagra Brands Inc.), Merger Agreement (Pinnacle Foods Inc.)
Covenants of Parent. From During the period from the date of this Agreement and continuing until the earlier of the Effective TimeTime and the termination of this Agreement in accordance with its terms, unless Parent agrees as to itself and its Subsidiaries that, except as expressly contemplated or permitted by this Agreement, as required by applicable Law, as set forth in Section 6.2 of the Parent Disclosure Letter or to the extent that the Company shall otherwise consent in writing (which such consent shall not to be unreasonably withheld conditioned, delayed or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Lawwithheld), Parent shall, and its Subsidiaries shall cause each of the Parent Subsidiaries to, conduct its business in all material respects carry on their respective businesses in the usual, regular and ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its of business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement, as required by applicable Law, as set forth in Section 5.2 6.2 of the Parent Disclosure Letter or as to the extent that the Company shall otherwise expressly provided for consent in writing (such consent not to be unreasonably conditioned, delayed or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective Time, without the prior written consent of the Companywithheld), Parent shall not, and in the case of clauses (d) and (e) and, solely as it relates to clauses (d) and (e), shall not directly or indirectlypermit any of its Subsidiaries to:
(a) amend or modify any in respect of the Constituent Documents of Parent;
(b) Parent only, (i) declare, set asideaside or pay, or propose to declare, set aside or pay, any dividends on or make other distributions in respect of any of its share capital, options or pay any dividend or other distribution warrants (whether in cash, stock shares or property) in respect of property or any of Securities combination thereof), except for regular dividends paid to holders of Parent, other than quarterly dividends ’s preferred shares or Parent’s subordinate voting shares or multiple voting shares in the ordinary course of business consistent with past practicepractices, (ii) adjust, split, combine or reclassify reclassify, or propose to adjust, split, combine or reclassify, any Securities of Parentits share capital, or any other securities in respect of, in lieu of or in substitution for, shares of its share capital, (iii) issueamend or waive the terms of any option, deliver warrant or sell any Securities of Parent, other than (A) the issuance and delivery of right to acquire newly issued shares of Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent benefit plan as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Timeits share capital, or (iv) repurchase, redeem or otherwise acquire acquire, propose to repurchase, redeem or otherwise acquire, any Securities shares of Parentits share capital or any securities convertible into or exercisable for any shares of its share capital, other than acquisitions except in the case of Securities pursuant to clause (iv), in the case of any Parent benefit plan (A) “cashless exercise” provision expressly provided for under the terms of options or warrants outstanding as in effect on of the date of this AgreementAgreement or awarded or granted following the date of this Agreement in accordance with the terms of this Agreement or in connection with tax withholding upon the exercise of stock options or the vesting of restricted stock units or (B) redemptions or repurchases of Parent’s preferred shares or common shares pursuant to Parent’s previously announced normal course issuer bid;
(b) issue or sell any Parent Shares as consideration for, or to finance, the acquisition of, merger with, or purchase of a material interest in, any other Person (other than the Company solely (i) as contemplated by the Offer Price or (ii) in connection with any amendment or waiver of this Agreement pursuant to Section 7.4(h)) at a price per Parent Share that is less than the USD Equivalent of CAD$614.45 at the time of the entry into the agreement providing for such acquisition, merger or purchase; provided, however that Parent shall not be prohibited from or otherwise restricted in issuing or selling Parent Shares in such circumstances in an amount not to exceed $500,000,000 in the aggregate (based on the USD Equivalent of the price per Parent Share at the respective time of the entry into each such agreement providing for such acquisition, merger or purchase); provided, further, that, notwithstanding anything herein to contrary, Parent shall, except as expressly prohibited above in this clause (b), be permitted to issue, deliver, pledge, encumber, dispose of, or sell, any shares of its share capital of any class, any share appreciation rights or any securities convertible or redeemable into or exercisable or exchangeable for, or any right, warrants or options to acquire, any such shares;
(c) amend or propose to amend (whether by merger, amalgamation, scheme of arrangement, consolidation or otherwise) its articles of incorporation or by-laws or waive any requirement thereof, except for the filing of articles of amendment to create a new series of preferred shares;
(d) other than in connection with transactions related to Parent Investment Assets, amalgamate, merge or consolidate with any other Person, or acquire (or permit any Parent Subsidiary agree to acquire) , by amalgamating, merging or consolidating with, by purchasing a material interest in or a material portion of the assets of, by share exchangeforming a partnership or joint venture with, or by purchase or by any other manner, any Person corporation, partnership, association or divisionother business organization or division thereof, business or equity interest of any Personmaterial assets, rights or properties, in each case, if such action, individually or together with all other than acquisitions that would not such actions, could reasonably be expected to prevent prevent, inhibit or materially delay or impede the consummation of the transactions contemplated by this AgreementMerger;
(de) take any action with the knowledge and intent that it would (i) result in any of the conditions to the Offer set forth in Annex A or the Merger set forth in Article VIII not being satisfied or (ii) materially adversely affect or delay the ability of the parties to obtain any of the Transaction Approvals without imposition of a Burdensome Regulatory Action;
(f) adopt or implement a any plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parentreorganization; or
(eg) agree to, or make any commitment to, take, or authorize, resolve, agree or commit to do any of the foregoingactions prohibited by this Section 6.2.
Appears in 2 contracts
Sources: Merger Agreement (Fairfax Financial Holdings LTD/ Can), Merger Agreement (Allied World Assurance Co Holdings, AG)
Covenants of Parent. From Parent covenants and agrees with the date of this Agreement until Administrative Agent and the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective Time, without the prior written consent of the Company, Parent shall not directly or indirectlyLenders that:
(a) amend Parent shall not conduct or modify otherwise engage in any business or operations other than (i) transactions contemplated by the Loan Documents or the provision of administrative, legal, accounting and management services to or on behalf of Borrower or any of its Subsidiaries, (ii) the Constituent ownership of the equity interests of Borrower and any general partner of the Borrower (or any successor thereto), and the exercise of rights and performance of obligations (including entering into guarantees and pledge agreements) in connection therewith, (iii) the entry into, and exercise of rights and performance of obligations in respect of, (1) this Agreement and the other Loan Documents to which Parent is a party, and any other agreement to which Parent is a party on the date hereof, in each case as amended, supplemented, waived or otherwise modified from time to time, and any refinancings, refundings, renewals or extensions thereof, (2) contracts and agreements with officers, directors and employees of Parent;Parent or Borrower relating to their employment or directorships, (3) insurance policies and related contracts and agreements, and (4) equity subscription agreements, registration rights agreements, voting and other stockholder agreements, engagement letters, underwriting agreements and other agreements in respect of its equity securities or any offering, issuance or sale thereof, (iv) the offering, issuance and sale of its equity securities, (v) the filing of registration statements, and compliance with applicable reporting and other obligations, under federal, state or other securities laws, (vi) the listing of its equity securities and compliance with applicable reporting and other obligations in connection therewith, (vii) the retention of transfer agents, private placement agents, underwriters, counsel, accountants and other advisors and consultants, (viii) the performance of obligations under and compliance with the Parent LP Agreement, or any applicable law, ordinance, regulation, rule, order, judgment, decree or permit, including, without limitation, as a result of or in connection with the activities of Borrower and its Subsidiaries, (ix) the incurrence and payment of its operating and business expenses and any taxes for which it may be liable, and (x) other activities incidental or related to the foregoing.
(b) Parent shall not own, lease, manage or otherwise operate any properties or assets (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of any of Securities of Parent, other than quarterly dividends consistent in connection with past practicethe activities described in Section 9.20(a)), or incur, create, assume or suffer to exist any Indebtedness of Parent (ii) split, combine or reclassify any Securities of Parent, (iii) issue, deliver or sell any Securities of Parent, other than (A) such as may be incurred, created or assumed or exist in connection with the issuance and delivery of shares of Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent benefit plan as activities described in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreement;
(c) acquire (or permit any Parent Subsidiary to acquire) by merging or consolidating with, or by share exchange, or by purchase or by any other manner, any Person or division, business or equity interest of any Person, other than acquisitions that would not reasonably be expected to prevent or delay or impede the consummation of the transactions contemplated by this Agreement;
(d) adopt or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parent; or
(e) authorize, resolve, agree or commit to do any of the foregoingSection 9.20(a)).
Appears in 2 contracts
Sources: Credit Agreement (EV Energy Partners, LP), Credit Agreement (EV Energy Partners, LP)
Covenants of Parent. From the date of Except as expressly contemplated by this Agreement until or as set forth in Section 5.02 of the Effective TimeParent Disclosure Letter, unless Parent shall not (and shall not permit any of its Subsidiaries to), without the prior written consent of the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective Time, without the prior written consent of the Company, Parent shall not directly or indirectly:):
(a) amend or modify any of Solely in the Constituent Documents case of Parent;
(b) (i) declare, set aside, make declare or pay any dividend dividends on or make any other distribution distributions (whether in cash, stock or property) in respect of any of Securities of Parentits capital stock, other than quarterly dividends consistent with past practice, (ii) or split, combine or reclassify any Securities of Parent, (iii) issue, deliver its capital stock or sell any Securities of Parent, other than (A) issue or authorize the issuance and delivery of any other securities in respect of, in lieu of or in substitution for shares of Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent benefit plan as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreementits capital stock;
(cb) Acquire or agree to acquire (or permit any Parent Subsidiary to acquire) by merging or consolidating with, or by share exchangepurchasing an equity interest in or any of the assets of, or by purchase or by any other manner, any Person business or any corporation, partnership or other business organization or division, business or equity interest of otherwise acquire or agree to acquire any Person, assets (other than acquisitions inventory and other items in the ordinary course of business), or take any other action, in any such case that would not could reasonably be expected to delay, prevent or delay or impede interfere with the consummation of the transactions contemplated by this AgreementMerger;
(c) Amend or propose to amend its charter or by-laws in a manner that would reasonably be expected to adversely impact (i) the consummation of the Merger or (ii) the Company or its stockholders, other than in the same respect as all other holders of Parent Common Stock;
(d) adopt Change any method or implement principle of financial accounting in a plan manner that is inconsistent with past practice, except to the extent required by GAAP or change in Law as advised by Parent’s regular independent accountants, make or change any material tax election, or settle or compromise any material Tax Liability or refund;
(e) Take any action that is intended or would reasonably be expected to result in any of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parentthe conditions to the Merger in Article VII not being satisfied; or
(ef) authorizeTake, resolveor agree in writing or otherwise to take, agree or commit to do any of the foregoingactions described in paragraphs (a) through (e) above. Nothing contained in this Agreement shall give the Company, directly or indirectly, rights to control or direct Parent’s operations prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its operations.
Appears in 2 contracts
Sources: Merger Agreement (Grant Prideco Inc), Merger Agreement (National Oilwell Varco Inc)
Covenants of Parent. From the date of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing except (which consent shall not be unreasonably withheld or delayedA) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall(B) as Company may approve in writing (such approval not to be unreasonably withheld, and shall cause each of the Parent Subsidiaries toconditioned or delayed), conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except or (C) as expressly set forth in the relevant subsection of Section 5.2 6.1(b) of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective Time, without the prior written consent of the CompanyLetter, Parent shall not directly or indirectlywill not:
(ai) amend adopt or modify propose any change in its certificate of incorporation or by-laws, or the Constituent Documents terms of any security of Parent;
(bii) reclassify, split, combine, subdivide or redeem, directly or indirectly, any of its capital stock;
(iiii) declare, set aside, make or pay any dividend or other distribution (whether distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or propertyrepurchase any Parent Shares at a premium; provided that, in each case solely to the extent in compliance with the credit agreements, indentures and other Contractual obligations of Parent and its Subsidiaries, (x) Parent may continue to declare and pay regular quarterly cash dividends to the holders of Parent Shares in respect an amount not in excess of any of Securities of $0.46 per Parent Share per fiscal quarter, in each case in accordance with Parent, other than quarterly dividends consistent with ’s past practice, and (iiy) splitParent may give effect to dividend equivalent rights with respect to grants under the Parent Stock Plans, combine any similar Parent plan;
(iv) restructure, reorganize or reclassify any Securities of Parent, completely or partially liquidate (iii) issue, deliver or sell any Securities of Parent, other than except for (A) the issuance and delivery of shares of Parent Common Stock pursuant to the Offer any such transactions among its wholly owned Subsidiaries or (B) pursuant to any Parent benefit plan as in effect on the date restructuring, reorganization or complete or partial liquidation of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this AgreementMPLX);
(cv) make any material changes to Merger Sub 1’s certificate of incorporation or by-laws or Merger Sub 2’s certificate of formation or limited liability company agreement, or any of their governing documents;
(vi) acquire (or permit any Parent Subsidiary to acquire) by merging or consolidating with, or by share exchangepurchasing a substantial portion of the assets of or equity in, or by purchase or by any other manner, any Person or division, any business or equity interest division thereof, or otherwise acquire any assets, unless such acquisition or the entering into of any Person, other than acquisitions that a definitive agreement relating to or the consummation of such transaction would not reasonably be expected to prevent (A) impose any material delay in the obtaining of, or delay increase in any material respect the risk of not obtaining, any authorizations, consents, orders, declarations or impede approvals of any Governmental Entity necessary to consummate the Merger or the expiration or termination of any applicable waiting or approval period, (B) increase the risk in any material respect of any Governmental Entity entering an order prohibiting the consummation of the transactions contemplated by this AgreementMerger, or (C) increase in any material respect the risk of not being able to remove any such order on appeal or otherwise;
(dvii) adopt issue, sell, pledge, dispose of, grant, transfer, encumber, or implement a plan authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of complete its capital stock or partial liquidation of any its Subsidiaries, or a dissolutionsecurities convertible or exchangeable into or exercisable for any shares of such capital stock, restructuringor any options, recapitalization warrants or other reorganization rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, other than the issuance of (A) any Parent Shares upon the exercise or settlement of any grants made under any Parent Stock Plan, that are outstanding on the date of this Agreement or permitted to be granted after the date of this Agreement pursuant to this Section 6.1(b)(vii)(C), in each case, in accordance with the terms of those grants; (B) any securities of a Parent Subsidiary to Parent or any other Subsidiary of Parent; or (C) any grants under the Parent Stock Plan in the ordinary course of business consistent with past practice; or
(eviii) authorizeagree, resolve, agree authorize or commit to do any of the foregoing; provided, however, that nothing contained in this Agreement, including this Section 6.1(b), shall limit or restrict MPLX, so long as any action taken by MPLX does not prevent, materially delay, materially impair or have a material adverse effect on the ability of Parent to perform its obligations under this Agreement or to consummate the Merger and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Andeavor), Merger Agreement (Marathon Petroleum Corp)
Covenants of Parent. From Except as permitted by the date terms of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective TimeAgreement, without the prior written consent of the Company, 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 shall not directly or indirectlydo any of the following and shall not permit Merger Sub to do any of the following:
(a) Except as required by law, waive any stock repurchase rights, accelerate, amend or modify change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of the Constituent Documents of Parentsuch plans;
(b) (i) Except as required by applicable law, grant any severance or termination pay to any officer or employee or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof; declare, set aside, make aside or pay any dividend dividends on or make any other distribution distributions (whether in cash, stock stock, equity securities or property) in respect of any of Securities of Parent, other than quarterly dividends consistent with past practice, (ii) capital stock or split, combine or reclassify any Securities of Parent, (iii) issue, deliver capital stock or sell any Securities of Parent, other than (A) issue or authorize the issuance and delivery of shares any other securities in respect of, in lieu of Parent Common Stock pursuant to the Offer or (B) pursuant to in substitution for any Parent benefit plan as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreementcapital stock;
(c) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or membership interest of Merger Sub; except for the Qualified Financing, issue, deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing with respect to any shares of capital stock (in the case of Parent) or membership interests (in the case of Merger Sub) or any securities convertible into or exchangeable for shares of capital stock or membership interests, as the case may be, or subscriptions, rights, warrants or options to acquire any shares of capital stock membership interests, as the case may be, or any securities convertible into shares of capital stock or membership interests, as the case may be, or enter into other agreements or commitments of any character obligating it to issue any such shares of capital stock or membership interests, as the case may be, or convertible securities, or any equity-based awards (whether payable in equity securities, cash or otherwise);
(d) Enter into any agreement with any placement agents in connection with the Qualified Financing that provide for compensation, rights, fees or the issuance of warrant or equity, except in accordance with the terms contemplated on Schedule 4.2(d);
(e) Cause, permit or submit to a vote of (i) Parent’s stockholders any amendments to the Parent Governance Documents (or permit similar governing instruments of Merger Sub) or (ii) to Merger Sub’s member any Parent Subsidiary amendments to acquirethe Merger Sub Governance Documents;
(f) Acquire or agree to acquire by merging or consolidating with, or by share exchangepurchasing any equity interest in or a portion of the assets of, or by purchase or by any other manner, any Person or division, business or equity interest any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any joint ventures, strategic partnerships or strategic investments;
(g) Sell, lease, license, encumber or otherwise dispose of any Personproperties or assets except in the ordinary course of business consistent with past practice, except for the sale, lease, licensing, encumbering or disposition of property or assets which are not material, individually or in the aggregate, to the business of Parent and Merger Sub;
(h) Incur any indebtedness for borrowed money, other than acquisitions that would not reasonably in the ordinary course of business and consistent with past practice, subject to the last sentence of Section 3.5(b), or guarantee any indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent.
(i) Adopt or amend employee stock purchase or employee stock option plan or other type of equity incentive compensation plan or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable “at will”), pay any special bonus or special remuneration to any director or employee, or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be expected to prevent or delay or impede the consummation of the transactions contemplated required by this Agreementlaw;
(dj) adopt Pay, discharge, settle or implement satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce the confidentiality or nondisclosure provisions of any agreement to which Parent or Merger Sub is a plan party or of complete which Parent or partial liquidation Merger Sub is a beneficiary;
(k) Except in the ordinary course of business consistent with past practice, materially modify, amend or terminate any agreements or waive, delay the exercise of, release or assign any material rights or claims thereunder without providing prior notice to the Company;
(l) Except as required by GAAP, revalue any of its assets or make any change in accounting methods, principles or practices;
(m) Make any Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, individually or in the aggregate, is reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of Parent or Merger Sub, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes;
(n) Take any action that would prevent the Merger from qualifying as a dissolution, restructuring, recapitalization or other reorganization under Section 368(a)(1)(A) of Parentthe Code and Treas. Reg. Section 1.368-2(b) promulgated thereunder; or
(eo) authorize, resolve, agree Agree in writing or commit otherwise to do take any of the foregoingactions described in Section 4.2 (a) through Section 4.2(o) above.
Appears in 1 contract
Covenants of Parent. From Except as permitted by the date terms of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective TimeAgreement, without the prior written consent of Chelsea, during the Companyperiod 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 shall not directly or indirectlydo any of the following and shall not permit Chelsea Merger Sub to do any of the following:
(a) Except as required by law or pursuant to the terms of the Parent Option Plan in effect as of the date hereof, waive any stock repurchase rights, accelerate, amend or modify change the period of exercisability of options or restricted stock, or reprise options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of the Constituent Documents of Parentsuch plans;
(b) Except as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to Chelsea, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(ic) declareDeclare, set aside, make aside or pay any dividend dividends on or make any other distribution distributions (whether in cash, stock stock, equity securities or property) in respect of any of Securities of Parent, other than quarterly dividends consistent with past practice, (ii) capital stock or split, combine or reclassify any Securities capital stock or issue or authorize the issuance of Parentany other securities in respect of, in lieu of or in substitution for any capital stock;
(iiid) issuePurchase, deliver redeem or sell otherwise acquire, directly or indirectly, any Securities shares of Parentcapital stock of Parent or Chelsea Merger Sub, except (i) 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 (or any such agreements entered into in the ordinary course of business consistent with past practice by Parent with employees hired after the date hereof), and (ii) for the purpose of funding or providing benefits under any stock option and incentive compensation plans, directors plans, and stock purchase and dividend reinvestment plans in accordance with past practice;
(e) Issue, deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing with respect to any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (whether payable in shares, cash or otherwise) other than (A) the issuance and issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to the Offer exercise of stock options or (B) pursuant to any Parent benefit plan warrants outstanding as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreement;
(cf) acquire Cause, permit or submit to a vote of Parent’s stockholders any amendments to the Parent Charter Documents (or permit any Parent Subsidiary similar governing instruments of Chelsea Merger Sub);
(g) Acquire or agree to acquire) acquire by merging or consolidating with, or by share exchangepurchasing any equity interest in or a portion of the assets of, or by purchase or by any other manner, any Person or division, business or equity interest any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any joint ventures, strategic partnerships or strategic investments;
(h) Sell, lease, license, encumber or otherwise dispose of any Personproperties or assets except in the ordinary course of business consistent with past practice, except for the sale, lease, licensing, encumbering or disposition of property or assets which are not material, individually or in the aggregate, to the business of Parent and Chelsea Merger Sub;
(i) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent, enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing other than in connection with the financing of working capital consistent with past practice;
(j) Adopt or amend employee stock purchase or employee stock option plan, or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable “at will”), pay any special bonus or special remuneration to any director or employee, or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law;
(k) Pay, discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than acquisitions that would not reasonably be expected the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or (ii) waive the benefits of, agree to prevent modify in any manner, terminate, release any person from or delay knowingly fail to enforce the confidentiality or impede nondisclosure provisions of any agreement to which Parent or Chelsea Merger Sub is a party or of which Parent or Chelsea Merger Sub is a beneficiary, in the consummation case of the transactions contemplated by both (i) and (ii) of this AgreementSection 4.1(l);
(dl) adopt Except in the ordinary course of business consistent with past practice, materially modify, amend or implement a plan terminate any Parent Contracts or waive, delay the exercise of, release or assign any material rights or claims thereunder without providing prior notice to Parent;
(m) Except as required by GAAP, revalue any of complete its assets or partial liquidation make any change in accounting methods, principles or a dissolutionpractices;
(n) Make any Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, restructuringindividually or in the aggregate, recapitalization is reasonably likely to adversely affect in any material respect the Tax liability or other reorganization Tax attributes of ParentParent or Chelsea Merger Sub, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes; or
(eo) authorize, resolve, agree Take any action that would prevent the Merger from qualifying as a reorganization under Section 368(a) of the Code.
(p) Agree in writing or commit otherwise to do take any of the foregoingactions described in Section 4.2 (a) through (o) above.
Appears in 1 contract
Covenants of Parent. From Except as permitted or otherwise contemplated by the date terms of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective TimeAgreement, without the prior written consent of Greenwich, during the Companyperiod 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 shall not directly or indirectlydo any of the following and shall not permit any of its subsidiaries to do any of the following:
(a) Except as required by law or pursuant to the terms of Parent’s 2003 Stock Option Plan (the “Parent Option Plan”) in effect as of the date hereof, waive any stock repurchase rights, accelerate, amend or modify change the period of exercisability of options or restricted stock, or reprise options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of the Constituent Documents of Parentsuch plans;
(b) Except as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to Greenwich, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(ic) declareDeclare, set aside, make aside or pay any dividend dividends on or make any other distribution distributions (whether in cash, stock stock, equity securities or property) in respect of any of Securities of Parent, other than quarterly dividends consistent with past practice, (ii) capital stock or split, combine or reclassify any Securities capital stock or issue or authorize the issuance of Parentany other securities in respect of, in lieu of or in substitution for any capital stock;
(iiid) issuePurchase, deliver redeem or sell otherwise acquire, directly or indirectly, any Securities shares of Parentcapital stock of Parent or VQ Merger Sub, except (i) 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 (or any such agreements entered into in the ordinary course of business consistent with past practice by Parent with employees hired after the date hereof), and (ii) for the purpose of funding or providing benefits under any stock option and incentive compensation plans, directors plans, and stock purchase and dividend reinvestment plans in accordance with past practice;
(e) Issue, deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing with respect to any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (whether payable in shares, cash or otherwise) other than (A) the issuance and issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to the Offer exercise of stock options or (B) pursuant to any Parent benefit plan warrants outstanding as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreement;
(c) acquire (or permit any Parent Subsidiary to acquire) by merging or consolidating with, or by share exchange, or by purchase or by any other manner, any Person or division, business or equity interest of any Person, other than acquisitions that would not reasonably be expected to prevent or delay or impede the consummation of the transactions contemplated by this Agreement;
(d) adopt or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parent; or
(e) authorize, resolve, agree or commit to do any of the foregoing.
Appears in 1 contract
Covenants of Parent. From Except as expressly provided or permitted herein or as set forth in Section 4.2 of the date Parent Disclosure Schedule, during the Pre-Closing Period Parent shall not, and shall not permit any of this Agreement until its Subsidiaries or Affiliates to, directly or indirectly, do any of the Effective Time, unless following without the prior written consent the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld withheld, conditioned or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective Time, without the prior written consent of the Company, Parent shall not directly or indirectly:):
(a) amend or modify any of the Constituent Documents of Parent;
(b) (i) declare, set aside, make aside or pay any dividend dividends in excess of $0.16 per quarter on, or make any other distribution distributions (whether in cash, stock securities or other property) in respect of of, any of Securities its capital stock, except for dividends by any of Parent, the Parent Subsidiaries to Parent or any of the other than Parent Subsidiaries or any regularly scheduled quarterly dividends the timing and amount of which are in the ordinary course of business consistent with past practice, practice or (ii) split, combine or reclassify any Securities of Parent, (iii) issue, deliver its capital stock or sell any Securities of Parent, other than (A) issue or authorize the issuance and delivery of any other securities in respect of, in lieu of or in substitution for shares of Parent Common Stock pursuant to the Offer its capital stock or any of its other securities;
(Bb) pursuant to any Parent benefit plan amend its Certificate of Incorporation, as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Timeamended, or (iv) repurchaseBylaws, redeem as amended, or otherwise acquire any Securities the certificate of Parentincorporation, bylaws or other than acquisitions comparable charter, formation or organizational documents of Securities pursuant to any Parent benefit plan as in effect on the date of this AgreementSubsidiaries;
(c) acquire other than the Financing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or permit otherwise), the obligations of any Person (other than any wholly-owned Parent Subsidiary in the ordinary course of business consistent with past practice) for borrowed money or issue or sell options, warrants, calls or other rights to acquireacquire any indebtedness for borrowed money of Parent or any of its Subsidiaries, or take any action that would result in any amendment, modification or change of any term of any indebtedness for borrowed money of Parent or any of its Subsidiaries, except (i) borrowings under Parent’s existing credit facilities and loans between Parent and its wholly-owned Subsidiaries or between Parent’s wholly-owned Subsidiaries, and (ii) Contracts entered into for purposes of hedging against changes in commodities prices or Contracts entered into for purposes of hedging against changes in foreign currency exchange rates or interest rates;
(d) implement or adopt any material change in financial accounting policies, practices or methods, other than as may be required by merging Law, GAAP or regulatory guidelines;
(e) acquire or agree to acquire by merging, or consolidating with, or by share exchangepurchasing any interest in or assets or securities of, or by purchase or by any other manner, any business or any Person or divisionany division or business thereof, business if such acquisition or equity interest agreement (i) is for an amount in excess of any Person, other than acquisitions that would not $100,000,000 or (ii) could reasonably be expected to prevent present a material risk of delaying the Effective Time, making it materially more difficult to obtain, or materially delay obtaining, any Consents or impede approvals of any Governmental Authority necessary to consummate the Merger, or present a material risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this AgreementMerger or materially increasing the risk of not being able to remove any such Order on appeal or otherwise;
(df) adopt authorize any of, or implement a plan commit or agree, in writing or otherwise, to take any of, the foregoing actions. If Parent or any of complete its Subsidiaries desires to take an action which would be prohibited pursuant to the foregoing clauses (a)-(f) without the written consent of the Company, prior to taking such action, Parent may request such written consent (which consent shall not be unreasonably withheld, conditioned or partial liquidation delayed) by sending an electronic mail or facsimile to the representative of the Company listed on Section 4.2 of the Parent Disclosure Schedule. The Company will either deliver to Parent written consent or a dissolutiondenial notification via electronic mail or facsimile within two Business Days after the Company receives a written request by Parent pursuant to this Section 4.2. If no such consent or denial is received by Parent within three Business Days of its request in accordance with this Section 4.2, restructuring, recapitalization or other reorganization of the Company will be deemed to have granted its consent to such action(s) requested by Parent; or
(e) authorize, resolve, agree or commit to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Diamond Foods Inc)
Covenants of Parent. From the date of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement hereof until the Effective Time, without the prior written consent of the CompanyCompany (which consent shall not be unreasonably withheld or delayed), Parent shall not directly or indirectly:
(a) amend or modify any of the Constituent Documents of Parent;
(b) (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of any of Securities of Parent, other than quarterly dividends consistent with past practice, practice or (ii) split, combine or reclassify any Securities of Parent, (iii) issue, deliver or sell any Securities of Parent, other than (A) the issuance and delivery of shares of Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent benefit plan as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreement;
(c) acquire (or permit any Parent Subsidiary to acquire) by merging or consolidating with, or by share exchange, or by purchase or by any other manner, any Person or division, business or equity interest of any Person, other than acquisitions that would not reasonably be expected to prevent or delay or impede the consummation of the transactions contemplated by this Agreement;
(d) adopt or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parent; or
(e) authorize, resolve, agree or commit to do any of the foregoing.
Appears in 1 contract
Covenants of Parent. From Except as permitted by the date terms of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective TimeAgreement, without the prior written consent of OrthoNetx, during the Companyperiod 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 shall not directly or indirectly:do any of the following and shall not permit its Subsidiaries to do any of the following: ___________ ___________
(a) Except as required by law or pursuant to the terms of the Parent Option Plan in effect as of the date hereof and except as set forth in Section 3.2 above, waive any stock repurchase rights, accelerate, amend or modify change the period of exercisability of options or restricted stock, or reprise options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of the Constituent Documents of Parentsuch plans;
(b) Except as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to OrthoNetx, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(ic) declareDeclare, set aside, make aside or pay any dividend dividends on or make any other distribution distributions (whether in cash, stock stock, equity securities or property) in respect of any of Securities of Parent, other than quarterly dividends consistent with past practice, (ii) capital stock or split, combine or reclassify any Securities capital stock or issue or authorize the issuance of Parentany other securities in respect of, in lieu of or in substitution for any capital stock;
(iiid) issuePurchase, deliver redeem or sell otherwise acquire, directly or indirectly, any Securities shares of Parentcapital stock of Parent or its Subsidiaries, except (i) 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 (or any such agreements entered into in the ordinary course of business consistent with past practice by Parent with employees hired after the date hereof), and (ii) for the purpose of funding or providing benefits under any stock option and incentive compensation plans, directors plans, and stock purchase and dividend reinvestment plans in accordance with past practice;
(e) Issue, deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing with respect to any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (whether payable in shares, cash or otherwise) other than (A) the issuance and issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to the Offer exercise of stock options or (B) pursuant to any Parent benefit plan warrants outstanding as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreement;
(cf) acquire Cause, permit or submit to a vote of Parent's stockholders any amendments to the Parent Charter Documents (or permit similar governing instruments of any of its Subsidiaries), except for the 2005 Parent Subsidiary Stockholder Meeting Changes;
(g) Acquire or agree to acquire) acquire by merging or consolidating with, or by share exchangepurchasing any equity interest in or a portion of the assets of, or by purchase or by any other manner, any Person or division, business or equity interest any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any joint ventures, strategic partnerships or strategic investments; ___________ ___________
(h) Sell, lease, license, encumber or otherwise dispose of any Personproperties or assets except in the ordinary course of business consistent with past practice, except for the sale, lease, licensing, encumbering or disposition of property or assets which are not material, individually or in the aggregate, to the business of Parent and its Subsidiaries;
(i) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent, enter into any "keep well" or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing other than in connection with the financing of working capital consistent with past practice;
(j) Adopt or amend employee stock purchase or employee stock option plan, or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable "at will"), pay any special bonus or special remuneration to any director or employee, or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law;
(k) Pay, discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than acquisitions that would not reasonably be expected the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or (ii) waive the benefits of, agree to prevent modify in any manner, terminate, release any person from or delay knowingly fail to enforce the confidentiality or impede non-disclosure provisions of any agreement to which Parent or any of its Subsidiaries is a party or of which Parent or any of its Subsidiaries is a beneficiary, in the consummation case of the transactions contemplated by both (i) and (ii) of this AgreementSection 4.1(l);
(dl) adopt Except in the ordinary course of business consistent with past practice, materially modify, amend or implement a plan terminate any Parent Contracts or waive, delay the exercise of, release or assign any material rights or claims thereunder without providing prior notice to Parent;
(m) Except as required by GAAP, revalue any of complete its assets or partial liquidation make any change in accounting methods, principles or a dissolutionpractices;
(n) Make any Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, restructuringindividually or in the aggregate, recapitalization is reasonably likely to adversely affect in any material respect the Tax liability or other reorganization Tax attributes of ParentParent or any of its Subsidiaries, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes; or
(eo) authorize, resolve, agree Agree in writing or commit otherwise to do take any of the foregoing.actions described in Section 4.2 (a) through (n) above. ___________ ___________
Appears in 1 contract
Sources: Merger Agreement (Eye Dynamics Inc)
Covenants of Parent. From During the date of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, period from the date of this Agreement and continuing until the Effective Time, without except as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, Parent and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. Without limiting the generality of the foregoing, and except as previously disclosed by Parent to the Company in writing or as otherwise contemplated by this Agreement or consented to in writing by the Company, Parent shall not, and shall not directly or indirectlypermit any of its Subsidiaries to:
(a) amend declare or modify pay any dividends on, or make other distributions in respect of, any shares of the Constituent Documents of ParentParent Stock;
(b) except as set forth in Schedule 5.3, (i) declarerepurchase for the redemption of certain convertible debentures issued to Thom▇▇ ▇▇▇▇▇▇▇▇▇ & ▇o., set asideLtd. by Parent in accordance with the Letter Agreement dated April 26, make 1999, and redeem or pay otherwise acquire any dividend shares of Parent Stock, or other distribution (whether in cash, stock any securities convertible into or property) in respect exercisable for any shares of any of Securities of Parent, other than quarterly dividends consistent with past practiceParent Stock, (ii) split, combine or reclassify any Securities shares of ParentParent 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 Parent Stock, or (iii) issue, deliver or sell sell, or authorize or propose the issuance, delivery or sale of, any Securities of Parent, other than (A) the issuance and delivery of shares of Parent Common Stock pursuant to the Offer its capital stock or (B) pursuant to any Parent benefit plan as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Timesecurities convertible into or exercisable for, or (iv) repurchaseany rights, redeem warrants or otherwise acquire options to acquire, any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreementsuch shares;
(c) amend its Articles of Incorporation or Bylaws;
(d) make any capital expenditures in excess of $50,000 other than those which are made in the ordinary course of business or are necessary to maintain existing assets in good repair;
(e) enter into any new line of business, except as contemplated hereby or in the Form 10-K;
(f) acquire (or permit any Parent Subsidiary agree to acquire) , by merging or consolidating with, or by share exchangepurchasing a substantial equity interest in or a substantial portion of the assets of, or by purchase or by any other manner, any Person or division, business or equity interest of any Personcorporation, partnership, association or other than acquisitions business organization or division thereof or otherwise acquire any assets, which would be material, individually or in the aggregate, to Parent;
(g) take any action that would not is intended or may reasonably be expected to prevent result in any of its representations and warranties set forth in this Agreement being or delay becoming untrue, or impede the consummation in any of the transactions contemplated by this Agreementconditions to the Merger not being satisfied;
(dh) adopt make a material change in its methods of accounting in effect at December 31, 1998, except as required by changes in GAAP or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of as concurred with by Parent; or
(e) authorize, resolve, agree or commit to do any of the foregoing.'s independent auditors;
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Merger (Futurelink Distribution Corp)
Covenants of Parent. (a) From and after the date of this Agreement until the earlier of the Effective TimeTime or the valid termination of this Agreement in accordance with its terms, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or and except as (i) expressly contemplated or required by this Agreement, (ii) set forth in Section 5.2 4.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be Letter, (iii) required by applicable Law, or (iv) with the Company’s prior written consent (which consent is not to be unreasonably withheld, conditioned or delayed), each of Parent shalland Merger Sub shall not, and shall cause each its Subsidiaries not to:
(i) amend any Organizational Documents of Parent or waive any provision thereunder (whether by merger, consolidation or otherwise) in a manner that would materially and adversely affect the rights of the holders of the Parent Subsidiaries toCommon Stock or would prevent, conduct its business in all material respects in materially delay or materially impair the ordinary course ability of Parent and in a manner consistent with past practice, and shall use its commercially reasonable efforts Merger Sub to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by perform their obligations under this Agreement or as required by applicable Law, from to consummate the date of this Agreement until the Effective Time, without the prior written consent of the Company, Parent shall not directly or indirectly:transactions contemplated hereby;
(aii) amend split, combine, subdivide or modify reclassify any shares of the Constituent Documents capital stock or other equity interests of Parent;
(b) (iiii) declare, set aside, make aside or pay any dividend on or make any other distribution distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or property) other equity securities or ownership interests in respect of any of Securities of Parent, other than quarterly except for the declaration and payment by Parent of dividends consistent with past practice, (ii) split, combine or reclassify any Securities of Parent, (iii) issue, deliver or sell any Securities of Parent, other than (A) the issuance and delivery of shares of on Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent benefit plan as to, and in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Timeaccordance with, or Section 5.9;
(iv) repurchase, redeem or otherwise acquire any Securities shares of capital stock of Parent, other than except (A) for acquisitions of Securities pursuant to any shares of Parent benefit plan Common Stock tendered by holders of equity awards under the Parent Equity Plans in accordance with the terms of the Parent Equity Plan as such awards are in effect on the date of this AgreementAgreement in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto or transactions solely between Parent and a wholly owned Subsidiary of Parent or wholly owned Subsidiaries of Parent, (B) acquisitions of shares of capital stock of Parent pursuant to Article IX of Parent’s amended and restated certificate of incorporation and (C) in de minimis amounts;
(cv) acquire (or permit take any Parent Subsidiary to acquire) by merging or consolidating withaction, or by share exchangefail to take any action, or by purchase or by any other manner, any Person or division, business or equity interest of any Person, other than acquisitions that which would not reasonably be expected to prevent cause Parent to fail to qualify as a REIT (provided that in no event shall Parent be required to change its practices, classifications or delay or impede the consummation tax positions as of the transactions contemplated date of this Agreement as a result of this clause (v) absent changes in applicable Law), or take any action, or knowingly fail to take any action, which action or failure to act could be reasonably expected to prevent the Merger (for the avoidance of doubt, regardless of the option selected between the Forward Merger and the Reverse Merger by this AgreementParent pursuant to Section 1.1(a) and, in the event of a Forward Merger, regardless of whether Merger Sub is treated for U.S. federal and state income Tax purposes as a disregarded entity, a QRS or a TRS) from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(dvi) adopt liquidate (completely or implement a plan of complete partially), wind up, dissolve, place into administration or partial liquidation receivership, enter into any voluntary arrangement or a dissolutionother compromise with creditors, restructure, recapitalize or effect any other reorganization (including any restructuring, recapitalization or reorganization between or among any of Parent or any of its Subsidiaries), or adopt any plan or resolution, or take any other reorganization action providing for any of the foregoing, in each case with respect to Parent; or
(evii) agree to, or make any commitment to, take, or authorize, resolve, agree or commit to do any of the foregoingactions prohibited or restricted by this Section 4.2.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit or restrict Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Board of Directors of Parent, upon advice of counsel to Parent, is reasonably necessary for Parent to maintain its qualification as a REIT under the Code and avoid to the extent possible the incurrence of entity level income or excise Tax, in each case for any period or portion thereof ending on or prior to the Effective Time (including paying a REIT Dividend).
(c) Parent shall (i) use its reasonable best efforts to obtain the opinion of counsel described in Section 6.3(d), (ii) deliver to Cravath, Swaine & ▇▇▇▇▇ LLP (or other nationally recognized law firm reasonably satisfactory to the Company) an officer’s certificate, dated as of the Closing Date (and, if required, as of the effective date of the Form S-4), signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate (including, in the case of a Reverse Merger, the representations and warranties set forth on Section 3.2(n) of the Parent Disclosure Letter) to enable Cravath, Swaine & ▇▇▇▇▇ LLP (or, if applicable, such other nationally recognized law firm) to render the opinion described in Section 6.3(c) on the Closing Date (and, if required, as of the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act) (a “Parent Tax Representation Letter”); and (iii) deliver to Parent’s REIT Counsel an officer’s certificate, dated as of the Closing Date (and, if required, as of the effective date of the Form S-4), signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable Parent’s REIT Counsel to render the opinion described in Section 6.3(d) on the Closing Date (and, if required, as of the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act).
Appears in 1 contract
Sources: Merger Agreement (New Senior Investment Group Inc.)
Covenants of Parent. (a) From and after the date of this Agreement until the earlier of the Effective TimeTime or the valid termination of this Agreement in accordance with its terms, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or and except as (i) expressly contemplated or required by this Agreement, (ii) set forth in Section 5.2 4.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be Letter, (iii) required by applicable Law, or (iv) with the Company’s prior written consent (which consent is not to be unreasonably withheld, conditioned or delayed), each of Parent shalland Merger Sub shall not, and shall cause each its Subsidiaries not to:
(i) amend any Organizational Documents of Parent or waive any provision thereunder (whether by merger, consolidation or otherwise) in a manner that would materially and adversely affect the rights of the holders of the Parent Subsidiaries toCommon Stock or would prevent, conduct its business in all material respects in materially delay or materially impair the ordinary course ability of Parent and in a manner consistent with past practice, and shall use its commercially reasonable efforts Merger Sub to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by perform their obligations under this Agreement or as required by applicable Law, from to consummate the date of this Agreement until the Effective Time, without the prior written consent of the Company, Parent shall not directly or indirectly:transactions contemplated hereby;
(aii) amend split, combine, subdivide or modify reclassify any shares of the Constituent Documents capital stock or other equity interests of Parent;
(b) (iiii) declare, set aside, make aside or pay any dividend on or make any other distribution distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or property) other equity securities or ownership interests in respect of any of Securities of Parent, other than quarterly except for the declaration and payment by Parent of dividends consistent with past practice, (ii) split, combine or reclassify any Securities of Parent, (iii) issue, deliver or sell any Securities of Parent, other than (A) the issuance and delivery of shares of on Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent benefit plan as to, and in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Timeaccordance with, or Section 5.9;
(iv) repurchase, redeem or otherwise acquire any Securities shares of capital stock of Parent, other than except (A) for acquisitions of Securities pursuant to any shares of Parent benefit plan Common Stock tendered by holders of equity awards under the Parent Equity Plans in accordance with the terms of the Parent Equity Plan as such awards are in effect on the date of this AgreementAgreement in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto or transactions solely between Parent and a wholly owned Subsidiary of Parent or wholly owned Subsidiaries of Parent, (B) acquisitions of shares of capital stock of Parent pursuant to Article IX of Parent’s amended and restated certificate of incorporation and (C) in de minimis amounts;
(cv) acquire (or permit take any Parent Subsidiary to acquire) by merging or consolidating withaction, or by share exchangefail to take any action, or by purchase or by any other manner, any Person or division, business or equity interest of any Person, other than acquisitions that which would not reasonably be expected to prevent cause Parent to fail to qualify as a REIT (provided that in no event shall Parent be required to change its practices, classifications or delay or impede the consummation tax positions as of the transactions contemplated date of this Agreement as a result of this clause (v) absent changes in applicable Law), or take any action, or knowingly fail to take any action, which action or failure to act could be reasonably expected to prevent the Merger (for the avoidance of doubt, regardless of the option selected between the Forward Merger and the Reverse Merger by this AgreementParent pursuant to Section 1.1(a) and, in the event of a Forward Merger, regardless of whether Merger Sub is treated for U.S. federal and state income Tax purposes as a disregarded entity, a QRS or a TRS) from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(dvi) adopt liquidate (completely or implement a plan of complete partially), wind up, dissolve, place into administration or partial liquidation receivership, enter into any voluntary arrangement or a dissolutionother compromise with creditors, restructure, recapitalize or effect any other reorganization (including any restructuring, recapitalization or reorganization between or among any of Parent or any of its Subsidiaries), or adopt any plan or resolution, or take any other reorganization action providing for any of the foregoing, in each case with respect to Parent; or
(evii) agree to, or make any commitment to, take, or authorize, resolve, agree or commit to do any of the foregoingactions prohibited or restricted by this Section 4.2.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit or restrict Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Board of Directors of Parent, upon advice of counsel to Parent, is reasonably necessary for Parent to maintain its qualification as a REIT under the Code and avoid to the extent possible the incurrence of entity level income or excise Tax, in each case for any period or portion thereof ending on or prior to the Effective Time (including paying a REIT Dividend).
(c) Parent shall (i) use its reasonable best efforts to obtain the opinion of counsel described in Section 6.3(d), (ii) deliver to Cravath, Swaine & M▇▇▇▇ LLP (or other nationally recognized law firm reasonably satisfactory to the Company) an officer’s certificate, dated as of the Closing Date (and, if required, as of the effective date of the Form S-4), signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate (including, in the case of a Reverse Merger, the representations and warranties set forth on Section 3.2(n) of the Parent Disclosure Letter) to enable Cravath, Swaine & M▇▇▇▇ LLP (or, if applicable, such other nationally recognized law firm) to render the opinion described in Section 6.3(c) on the Closing Date (and, if required, as of the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act) (a “Parent Tax Representation Letter”); and (iii) deliver to Parent’s REIT Counsel an officer’s certificate, dated as of the Closing Date (and, if required, as of the effective date of the Form S-4), signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable Parent’s REIT Counsel to render the opinion described in Section 6.3(d) on the Closing Date (and, if required, as of the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act).
Appears in 1 contract
Sources: Merger Agreement (Ventas, Inc.)
Covenants of Parent. From Except as permitted by the date terms of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective TimeAgreement, without the prior written consent of Lev, during the Companyperiod 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 shall not directly or indirectlydo any of the following and shall not permit its Subsidiaries to do any of the following:
(a) Except as required by law or pursuant to the terms of the Parent Option Plan in effect as of the date hereof, waive any stock repurchase rights, accelerate, amend or modify change the period of exercisability of options or restricted stock, or reprise options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of the Constituent Documents of Parentsuch plans;
(b) Except as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to Lev, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(ic) declareDeclare, set aside, make aside or pay any dividend dividends on or make any other distribution distributions (whether in cash, stock stock, equity securities or property) in respect of any of Securities of Parent, other than quarterly dividends consistent with past practice, (ii) capital stock or split, combine or reclassify any Securities capital stock or issue or authorize the issuance of Parentany other securities in respect of, in lieu of or in substitution for any capital stock;
(d) Except as provided under Section 6.2(f) below, purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its Subsidiaries, except (i) 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 (or any such agreements entered into in the ordinary course of business consistent with past practice by Parent with employees hired after the date hereof), (iiiii) issuefor the purpose of funding or providing benefits under any stock option and incentive compensation plans, deliver directors plans, and stock purchase and dividend reinvestment plans in accordance with past practice; -------------------------------------------------------------------------------- 28
(e) Issue, deliver, sell, authorize, pledge or sell otherwise encumber or propose any Securities of Parentthe foregoing with respect to any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (whether payable in shares, cash or otherwise) other than (A) the issuance and issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to the Offer exercise of stock options or (B) pursuant to any Parent benefit plan warrants outstanding as in effect on of the date of this Agreement; provided that the foregoing clause .
(iiif) shall apply only until the Acceptance TimeCause, permit or (iv) repurchase, redeem or otherwise acquire any Securities submit to a vote of Parent, other than acquisitions 's stockholders any amendments to the Parent Charter Documents (or similar governing instruments of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreementits Subsidiaries);
(cg) Acquire or agree to acquire (or permit any Parent Subsidiary to acquire) by merging or consolidating with, or by share exchangepurchasing any equity interest in or a portion of the assets of, or by purchase or by any other manner, any Person or division, business or equity interest any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any joint ventures, strategic partnerships or strategic investments;
(h) Sell, lease, license, encumber or otherwise dispose of any Personproperties or assets except in the ordinary course of business consistent with past practice, except for the sale, lease, licensing, encumbering or disposition (other than through licensing permitted by clause (c)) of property or assets which are not material, individually or in the aggregate, to the business of Parent and its Subsidiaries;
(i) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent, enter into any "keep well" or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing other than in connection with the financing of working capital consistent with past practice;
(j) Adopt or amend employee stock purchase or employee stock option plan; or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable "at will"); pay any special bonus or special remuneration to any director or employee; or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law and except for (i) salary increases in the ordinary course of business consistent with past practice for non-officer employees, (ii) salary increases for officers in an amount not exceeding 5% of such officer's salary on the date hereof and (iii) as set forth on Schedule 4.2(j); -------------------------------------------------------------------------------- 29
(k) Pay, discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than acquisitions that would not reasonably be expected the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or (ii) waive the benefits of, agree to prevent modify in any manner, terminate, release any person from or delay knowingly fail to enforce the confidentiality or impede nondisclosure provisions of any agreement to which Parent or any of its Subsidiaries is a party or of which Parent or any of its Subsidiaries is a beneficiary, in the consummation case of the transactions contemplated by both (i) and (ii) of this AgreementSection 4.1(l);
(dl) adopt Except in the ordinary course of business consistent with past practice, and except as provided under Section 6.2(f) below, materially modify, amend or implement a plan terminate any Parent Contracts disclosed in Schedule 3.15 of complete the Parent Schedule or partial liquidation waive, delay the exercise of, release or a dissolutionassign any material rights or claims thereunder without providing prior notice to Parent;
(m) Except as required by GAAP, restructuringrevalue any of its assets or make any change in accounting methods, recapitalization principles or other reorganization practices;
(n) Make any Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, individually or in the aggregate, is reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of ParentParent or any of its Subsidiaries, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes; or
(eo) authorize, resolve, agree Agree in writing or commit otherwise to do take any of the foregoingactions described in Section 4.1 (a) through (o) above.
Appears in 1 contract
Covenants of Parent. (a) From and after the date of this Agreement until the earlier of the Effective TimeTime or the valid termination of this Agreement in accordance with its terms, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or and except as (i) expressly contemplated or required by this Agreement, (ii) set forth in Section 5.2 4.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be Letter, (iii) required by applicable Law, or (iv) with the Company’s prior written consent (which consent is not to be unreasonably withheld, conditioned or delayed), each of Parent shalland Merger Sub shall not, and shall cause each its Subsidiaries not to:
(i) amend any Organizational Documents of Parent or waive any provision thereunder (whether by merger, consolidation or otherwise) in a manner that would materially and adversely affect the rights of the holders of the Parent Subsidiaries toCommon Stock or would prevent, conduct its business in all material respects in materially delay or materially impair the ordinary course ability of Parent and in a manner consistent with past practice, and shall use its commercially reasonable efforts Merger Sub to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by perform their obligations under this Agreement or as required by applicable Law, from to consummate the date of this Agreement until the Effective Time, without the prior written consent of the Company, Parent shall not directly or indirectly:transactions contemplated hereby;
(aii) amend split, combine, subdivide or modify reclassify any shares of the Constituent Documents capital stock or other equity interests of Parent;
(b) (iiii) declare, set aside, make aside or pay any dividend on or make any other distribution distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or property) other equity securities or ownership interests in respect of any of Securities of Parent, other than quarterly except for the declaration and payment by Parent of dividends consistent with past practice, (ii) split, combine or reclassify any Securities of Parent, (iii) issue, deliver or sell any Securities of Parent, other than (A) the issuance and delivery of shares of on Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent benefit plan as to, and in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Timeaccordance with, or Section 5.9;
(iv) repurchase, redeem or otherwise acquire any Securities shares of capital stock of Parent, other than except (A) for acquisitions of Securities pursuant to any shares of Parent benefit plan Common Stock tendered by holders of equity awards under the Parent Equity Plans in accordance with the terms of the Parent Equity Plan as such awards are in effect on the date of this Agreement;Agreement in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto or transactions solely between Parent and a wholly owned Subsidiary of Parent or wholly owned Subsidiaries of Parent, (B) acquisitions of shares of capital stock of Parent pursuant to Article IX of Parent’s amended and restated certificate of incorporation and (C) in
(cv) acquire (or permit take any Parent Subsidiary to acquire) by merging or consolidating withaction, or by share exchangefail to take any action, or by purchase or by any other manner, any Person or division, business or equity interest of any Person, other than acquisitions that which would not reasonably be expected to prevent cause Parent to fail to qualify as a REIT (provided that in no event shall Parent be required to change its practices, classifications or delay or impede the consummation tax positions as of the transactions contemplated by date of this Agreement;
(d) adopt or implement Agreement as a plan result of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parent; or
(e) authorize, resolve, agree or commit to do any of the foregoing.this clause
Appears in 1 contract
Sources: Merger Agreement
Covenants of Parent. From Except as expressly contemplated by this Agreement, from the date execution of this Agreement until the Effective Timeearlier of the Closing and the termination of this Agreement in accordance with its terms, unless the Company shall otherwise consent consented to in writing by Remedy Opco (which consent shall not be unreasonably withheld withheld, delayed or delayedconditioned): (a) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent its Subsidiaries to, conduct its business in all material respects carry on their respective businesses in the usual, regular and ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its their present business organization organizations, maintain their rights, franchises, licenses and goodwill other authorizations issued by Governmental Entities and preserve their relationships with all Governmental Entitiesemployees, customers, suppliers and others having other Persons with whom they have business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective Time, without the prior written consent of the Company, Parent shall not directly or indirectly:
(a) amend or modify any of the Constituent Documents of Parent;
(b) Parent shall not, nor shall it permit any of its Subsidiaries to, (i) declareenter into any new material line of business, set aside(ii) incur or commit to any capital expenditures or any obligations or liabilities in connection therewith other than capital expenditures and obligations or liabilities incurred or committed to in the ordinary course of business, (iii) enter into or terminate any material Contract or make any change to any existing material Contract, except in the ordinary course of business, (iv) make, declare or pay any dividend or other distribution (whether in cash, stock upon or property) in respect of any Equity Interest of Securities Parent (which, for the avoidance of Parentdoubt, shall not limit its Subsidiaries from making such dividends or distributions to Parent or any of its other Subsidiaries), other than quarterly dividends consistent with past practicedistributions made pursuant to Section 4.4 (Tax Distributions) of the Existing Parent LLCA in an amount not to exceed $10,000,000, (ii) split, combine or reclassify any Securities of Parent, (iiiv) issue, deliver create, incur, assume, guarantee, endorse or sell otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Securities material indebtedness for borrowed money, (vi) directly or indirectly, through merger, consolidation or otherwise, acquire any capital stock or other equity interest in, or all or any substantial portion of Parentthe assets of, other than any Person, (vii) merge or consolidate with any Person, (viii) (A) make any payment or distribution to or for the issuance and delivery benefit of shares of Parent Common Stock pursuant to the Offer or any NM Person, (B) pursuant give or provide anything of value to or for the benefit of any Parent benefit plan as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance TimeNM Person, or (ivC) repurchase, redeem assume or otherwise acquire any Securities Liability of Parent, other than acquisitions any NM Person (in each case excluding Parent and its Subsidiaries from the definition of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreement;
(c) acquire (or permit any Parent Subsidiary to acquire) by merging or consolidating withNM Person), or by share exchange(ix) agree to, or by purchase make any commitment to, take, or by any other manner, any Person or division, business or equity interest of any Person, other than acquisitions that would not reasonably be expected to prevent or delay or impede the consummation of the transactions contemplated by this Agreement;
(d) adopt or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parent; or
(e) authorize, resolve, agree or commit to do any of the foregoing.
Appears in 1 contract
Covenants of Parent. From During the date of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, period from the date of this Agreement and continuing until the Effective Time, without except as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, Parent and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. Without limiting the generality of the foregoing, and except as previously disclosed by Parent to the Company in writing or as otherwise contemplated by this Agreement or consented to in writing by the Company, Parent shall not, and shall not directly or indirectlypermit any of its Subsidiaries to:
(a) amend its Certificate of Incorporation or modify any of the Constituent Documents of ParentBylaws;
(b) (i) declare, set aside, make declare or pay any dividend or other distribution (whether distribution, payable in cash, stock stock, property or property) otherwise, in respect of any Parent Capital Stock or any other securities subsequently authorized and issued by Parent, except that any Subsidiary of Securities Parent may pay dividends or make other distributions to Parent or any other Subsidiary of Parent, other than quarterly dividends consistent with past practice, (ii) split, combine or reclassify any Securities of Parent, (iii) issue, deliver or sell any Securities of Parent, other than (A) the issuance and delivery of shares of Parent Common Stock pursuant to the Offer or (B) pursuant to any Parent benefit plan as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreement;
(c) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(d) sell, transfer, license, sublicense or otherwise dispose of any material assets;
(e) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue, or in any of the conditions to the Merger set forth in Article I not being satisfied;
(f) enter into any new line of business except as contemplated hereby;
(g) acquire (or permit any Parent Subsidiary agree to acquire) acquire by merging or consolidating with, or by share exchangepurchasing a substantial equity interest in or a substantial portion of the assets of, or by purchase or by any other manner, any Person or division, business or equity interest of any Personcorporation, other than acquisitions that would not reasonably be expected to prevent or delay or impede the consummation of the transactions contemplated by this Agreement;
(d) adopt or implement a plan of complete or partial liquidation or a dissolutionpartnership, restructuring, recapitalization association or other reorganization of Parentbusiness organization or division thereof; or
(eh) authorizeother than (i) agreements in the ordinary course of business that do not require payments by the Company in excess of $200,000 per year per individual agreement or an aggregate of $600,000 per year for all such agreements and (ii) agreements not in the ordinary course of business that do not require payments by the Company in excess of $100,000 per year per individual agreement or an aggregate of $400,000 per year for all such agreements, resolvecreate, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material contract, agreement or lease for goods, services or office space to which the Company is a party or by which the Company or its properties are bound; or
(i) agree or commit to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Tickets Com Inc)
Covenants of Parent. From Except as permitted by the date terms of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective TimeAgreement, without the prior written consent of FlexSCAN, during the Companyperiod 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 shall not directly or indirectlydo any of the following and shall not permit its Subsidiaries to do any of the following:
(a) Except as required by law, waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, or reprise options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans; (b) Except as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to FlexSCAN, or adopt any new severance plan, or amend or modify or alter in any of manner any severance plan, agreement or arrangement existing on the Constituent Documents of Parent;
date hereof; (bc) (i) declareDeclare, set aside, make aside or pay any dividend dividends on or make any other distribution distributions (whether in cash, stock stock, equity securities or property) in respect of any of Securities of Parent, other than quarterly dividends consistent with past practice, (ii) capital stock or split, combine or reclassify any Securities capital stock or issue or authorize the issuance of Parentany other securities in respect of, in lieu of or in substitution for any capital stock; (d) Except as provided under Section 6.2(f) below, purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or its Subsidiaries, except (i) 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 (or any such agreements entered into in the ordinary course of business consistent with past practice by Parent with employees hired after the date hereof), (iiiii) issuefor the purpose of funding or providing benefits under any stock option and incentive compensation plans, deliver directors plans, and stock purchase and dividend reinvestment plans in accordance with past practice; (e) Issue, deliver, sell, authorize, pledge or sell otherwise encumber or propose any Securities of Parentthe foregoing with respect to any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (whether payable in shares, cash or otherwise) other than (A) the issuance and issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to the Offer exercise of stock options or (B) pursuant to any Parent benefit plan warrants outstanding as in effect on of the date of this Agreement; provided that the foregoing clause .
(iiif) shall apply only until the Acceptance TimeCause, permit or (iv) repurchase, redeem or otherwise acquire any Securities submit to a vote of Parent, other than acquisitions of Securities pursuant 's stockholders any amendments to any the Parent benefit plan as in effect on the date of this Agreement;
(c) acquire Charter Documents (or permit similar governing instruments of any Parent Subsidiary of its Subsidiaries); (g) Acquire or agree to acquire) acquire by merging or consolidating with, or by share exchangepurchasing any equity interest in or a portion of the assets of, or by purchase or by any other manner, any Person or division, business or equity interest of any Personcorporation, other than acquisitions that would not reasonably be expected to prevent or delay or impede the consummation of the transactions contemplated by this Agreement;
(d) adopt or implement a plan of complete or partial liquidation or a dissolutionpartnership, restructuring, recapitalization association or other reorganization of Parent; or
(e) authorizebusiness organization or division thereof, resolveor otherwise acquire or agree to enter into any joint ventures, agree strategic partnerships or commit to do any of the foregoing.strategic investments;
Appears in 1 contract
Covenants of Parent. From the date of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayeda) or except Except (i) as set forth in Section 5.2 4.02(a) of the Parent Disclosure Letter or Letter, (ii) as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, (iii) as expressly permitted by this Agreement, (iv) actions taken reasonably and in good faith in response to COVID-19 or in connection with COVID-19 Measures, in each case, in consultation with the Company or (v) with the prior written consent of the Company (which consent will not be unreasonably delayed, withheld or conditioned), during the Pre-Closing Period, Parent shall, and shall cause each of the Parent its Subsidiaries to, conduct (A) carry on its business in all material respects in the ordinary course and in a manner of business consistent with past practice, practice and shall (B) use its commercially reasonable best efforts to maintain and preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having advantageous business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without relationships.
(b) Without limiting the generality of Section 4.02(a), during the foregoing, Pre-Closing Period and except as expressly set forth in on Section 5.2 4.02(b) of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement Letter, or as required by applicable Law, from the date Parent shall not and shall not permit any of this Agreement until the Effective Timeits Subsidiaries, without the prior written consent of the CompanyCompany (which consent will not be unreasonably delayed, Parent shall not directly withheld or indirectlyconditioned), to:
(ai) amend or modify any the Parent Organizational Document in a manner that would be material and disproportionately adverse to the holders of Company Shares relative to the Constituent Documents treatment of Parentexisting holders of Parent Ordinary Shares;
(bii) (iA) authorize, declare, set aside, make or pay any dividend dividends on or other make any distribution (whether in cash, stock assets, shares or property) in respect other securities of Parent or any of Securities Subsidiary of Parent, other than quarterly dividends consistent ) with past practice, (ii) split, combine or reclassify any Securities of Parent, (iii) issue, deliver or sell any Securities of Parent, other than (A) the issuance and delivery of shares of Parent Common Stock pursuant respect to the Offer or (B) directly or indirectly redeem, purchase or otherwise acquire, in the case of each of clauses (A) and (B), any of its outstanding shares of capital stock or other equity interests or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock, or enter into any agreement and arrangement with respect to voting or registration of its capital stock or other equity interests or securities;
(iii) except for the Parent Ordinary Shares, Parent ADRs and New Parent Equity Awards to be issued pursuant to this Agreement or any Parent benefit Ordinary Shares issuable in the Financing or any Permitted Financing (as defined below), issue, sell, pledge, dispose of or otherwise encumber, or otherwise permit to become outstanding, or authorize the issuance, sale, pledge, disposition or other encumbrance of any (A) shares of beneficial interests, capital stock or other ownership interest in Parent or any of its Subsidiaries, (B) securities convertible into or exchangeable or exercisable for any such shares or ownership interest, or (C) rights, warrants or options to acquire or with respect to any such shares of beneficial interest, 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 share option plan as except, in effect each case, for issuances of Parent Ordinary Shares in respect of (I) any exercise or conversion of any existing securities outstanding on the date of this Agreement; provided that , in accordance with their terms on the foregoing clause date of this Agreement (iiiand any dividend equivalent thereon) shall apply only until (including, the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities exercise of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan Options and/or the exercise of any deferred consideration or other “performance securities” (as in effect that term is used for the purposes of ASX Guidance Note 19)), (II) any vesting, exercise, conversion or delivery of shares under Parent RSUs or Parent Options outstanding on the date of this Agreement, in accordance with their terms as of the date of this Agreement, and (III) for transactions solely between or among Parent and its wholly owned Subsidiaries;
(civ) acquire (effect a recapitalization, reclassification of shares, stock split, reverse stock split or permit similar transaction or authorize the issuance of any Parent Subsidiary to acquire) by merging or consolidating withother securities in respect of, in lieu of, or by share exchangein substitution for, or by purchase or by any other manner, any Person or division, business or equity interest shares of any Person, other than acquisitions that would not reasonably be expected to prevent or delay or impede the consummation of the transactions contemplated by this Agreementits capital stock;
(dv) adopt or implement a plan of complete or partial liquidation or dissolution with respect to Parent;
(vi) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in, or a dissolutionportion of the material assets of, restructuringany business or any corporation, recapitalization partnership, association or other reorganization business organization or division thereof, or otherwise acquire or agree to acquire any material assets of Parentany other Person, except for (A) the purchase of materials, goods and services from suppliers or vendors in the ordinary course of business consistent with past practices or (B) acquisitions for amounts that do not exceed five million dollars ($5,000,000) individually or fifteen million dollars ($15,000,000) in the aggregate;
(vii) (A) incur any Indebtedness, (B) renew or extend any existing credit or loan arrangements, (C) enter into any “keep well” or other agreement to maintain any financial condition of another Person or (D) enter into any agreement or arrangement having the economic effect of any of the foregoing, except, in the case of each of clauses (A) through (D), for (1) short-term Indebtedness incurred in the ordinary course of business consistent with past practices, (2) warehouse lines (including any refinancing of any existing warehouse line) and (3) any amounts that do not exceed twenty-five million dollars ($25,000,000) individually or seventy-five million dollars ($75,000,000) in the aggregate except for unsecured amounts for which a principal payment would be due within two years of incurrence;
(viii) change any of its financial, actuarial, reserving, accounts receivable collection or Tax accounting methods or practices in any respect, expect as required by IFRS or Law;
(ix) take or cause to be taken any action that would reasonably be expected to prevent the consummation of the Merger; or
(ex) authorize, resolve, agree or commit to do take any of the foregoingactions described in clauses (i) through (ix) of this Section 4.02(b).
Appears in 1 contract
Sources: Merger Agreement (Sezzle Inc.)
Covenants of Parent. From Except as permitted by the date terms of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective TimeAgreement, without the prior written consent of the Company, 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 shall not directly or indirectlydo any of the following and shall not permit Merger Sub to do any of the following:
(a) Except as required by law, waive any stock repurchase rights, accelerate, amend or modify change the period of exercisability of options or restricted stock, or reprise options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of the Constituent Documents of Parentsuch plans;
(b) Except as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to the Company, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(ic) declareDeclare, set aside, make aside or pay any dividend dividends on or make any other distribution distributions (whether in cash, stock stock, equity securities or property) in respect of any of Securities of Parent, other than quarterly dividends consistent with past practice, (ii) capital stock or split, combine or reclassify any Securities capital stock or issue or authorize the issuance of Parentany other securities in respect of, in lieu of or in substitution for any capital stock;
(iiid) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Parent or Merger Sub, except (i) 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 (or any such agreements entered into in the ordinary course of business consistent with past practice by Parent with employees hired after the date hereof), and (ii) for the purpose of funding or providing benefits under any stock option and incentive compensation plans, directors plans, and stock purchase and dividend reinvestment plans in accordance with past practice;
(e) Except for the Financing, issue, deliver deliver, sell, authorize, pledge or sell otherwise encumber or propose any Securities of Parentthe foregoing with respect to any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (whether payable in shares, cash or otherwise) other than (A) the issuance and issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to the Offer exercise of stock options or (B) pursuant to any Parent benefit plan warrants outstanding as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreement;
(cf) acquire Cause, permit or submit to a vote of Parent’s stockholders any amendments to the Parent Charter Documents (or permit any Parent Subsidiary similar governing instruments of Merger Sub) other than as provided in Section 6.1(g);
(g) Acquire or agree to acquire) acquire by merging or consolidating with, or by share exchangepurchasing any equity interest in or a portion of the assets of, or by purchase or by any other manner, any Person or division, business or equity interest any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any joint ventures, strategic partnerships or strategic investments;
(h) Sell, lease, license, encumber or otherwise dispose of any Personproperties or assets except in the ordinary course of business consistent with past practice, except for the sale, lease, licensing, encumbering or disposition of property or assets which are not material, individually or in the aggregate, to the business of Parent and Merger Sub;
(i) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent.
(j) Adopt or amend employee stock purchase or employee stock option plan, or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable “at will”), pay any special bonus or special remuneration to any director or employee, or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law;
(k) Pay, discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than acquisitions that would not reasonably be expected the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or (ii) waive the benefits of, agree to prevent modify in any manner, terminate, release any person from or delay knowingly fail to enforce the confidentiality or impede the consummation nondisclosure provisions of the transactions contemplated by this Agreementany agreement to which Parent or Merger Sub is a party or of which Parent or Merger Sub is a beneficiary;
(dl) adopt Except in the ordinary course of business consistent with past practice, materially modify, amend or implement terminate any agreements or waive, delay the exercise of, release or assign any material rights or claims thereunder without providing prior notice to the Company;
(m) Except as required by GAAP, revalue any of its assets or make any change in accounting methods, principles or practices;
(n) Make any Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, individually or in the aggregate, is reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of Parent or Merger Sub, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes;
(o) Take any action that would prevent the Merger from qualifying as a plan reorganization under Section 368(a) of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Parentthe Code; or
(ep) authorize, resolve, agree Agree in writing or commit otherwise to do take any of the foregoingactions described in Section 4.2 (a) through Section 4.1(o) above.
Appears in 1 contract
Covenants of Parent. From Except as permitted by the date terms of this Agreement until the Effective Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed) or except as set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as may be required by applicable Law, Parent shall, and shall cause each of the Parent Subsidiaries to, conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and shall use its commercially reasonable efforts to preserve intact its business organization and goodwill and relationships with all Governmental Entities, customers, suppliers and others having business dealings with it and to maintain its current rights and franchises, in each case, consistent with past practice. In addition to and without limiting the generality of the foregoing, except as expressly set forth in Section 5.2 of the Parent Disclosure Letter or as otherwise expressly provided for or contemplated by this Agreement or as required by applicable Law, from the date of this Agreement until the Effective TimeAgreement, without the prior written consent of Ariston, during the Companyperiod 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 shall not directly or indirectlydo any of the following and shall not permit ▇▇▇▇▇▇ Merger Sub to do any of the following:
(a) Except as required by law, waive any stock repurchase rights, accelerate, amend or modify change the period of exercisability of options or restricted stock, or reprise options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of the Constituent Documents of Parentsuch plans;
(b) Except as required by applicable law, grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to Ariston, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof;
(ic) declareDeclare, set aside, make aside or pay any dividend dividends on or make any other distribution distributions (whether in cash, stock stock, equity securities or property) in respect of any of Securities of Parent, other than quarterly dividends consistent with past practice, (ii) capital stock or split, combine or reclassify any Securities capital stock or issue or authorize the issuance of Parentany other securities in respect of, in lieu of or in substitution for any capital stock;
(iiid) issuePurchase, deliver redeem or sell otherwise acquire, directly or indirectly, any Securities shares of Parentcapital stock of Parent or ▇▇▇▇▇▇ Merger Sub, except (i) 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 (or any such agreements entered into in the ordinary course of business consistent with past practice by Parent with employees hired after the date hereof), and (ii) for the purpose of funding or providing benefits under any stock option and incentive compensation plans, directors plans, and stock purchase and dividend reinvestment plans in accordance with past practice;
(e) Issue, deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing with respect to any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, or any equity-based awards (whether payable in shares, cash or otherwise) other than (A) the issuance and issuance, delivery and/or sale of shares of Parent Common Stock (as appropriately adjusted for stock splits and the like) pursuant to the Offer exercise of stock options or (B) pursuant to any Parent benefit plan warrants outstanding as in effect on the date of this Agreement; provided that the foregoing clause (iii) shall apply only until the Acceptance Time, or (iv) repurchase, redeem or otherwise acquire any Securities of Parent, other than acquisitions of Securities pursuant to any Parent benefit plan as in effect on the date of this Agreement;
(cf) acquire Cause, permit or submit to a vote of Parent's stockholders any amendments to the Parent Charter Documents (or permit any Parent Subsidiary similar governing instruments of ▇▇▇▇▇▇ Merger Sub) other than as provided in Section 6.1(g);
(g) Acquire or agree to acquire) acquire by merging or consolidating with, or by share exchangepurchasing any equity interest in or a portion of the assets of, or by purchase or by any other manner, any Person or division, business or equity interest any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any joint ventures, strategic partnerships or strategic investments;
(h) Sell, lease, license, encumber or otherwise dispose of any Personproperties or assets except in the ordinary course of business consistent with past practice, except for the sale, lease, licensing, encumbering or disposition of property or assets which are not material, individually or in the aggregate, to the business of Parent and ▇▇▇▇▇▇ Merger Sub;
(i) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent;
(j) Adopt or amend employee stock purchase or employee stock option plan, or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable “at will”), pay any special bonus or special remuneration to any director or employee, or increase the salaries, wage rates, compensation or other fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants except, in each case, as may be required by law;
(i) Pay, discharge, settle or satisfy any litigation (whether or not commenced prior to the date of this Agreement) or any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than acquisitions that would not reasonably be expected the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities recognized or disclosed in the Parent Balance Sheet or incurred since the date of such financial statements, or (ii) waive the benefits of, agree to prevent modify in any manner, terminate, release any person from or delay knowingly fail to enforce the confidentiality or impede the consummation nondisclosure provisions of the transactions contemplated by this Agreementany agreement to which Parent or ▇▇▇▇▇▇ Merger Sub is a party or of which Parent or ▇▇▇▇▇▇ Merger Sub is a beneficiary;
(dl) adopt Except in the ordinary course of business consistent with past practice, materially modify, amend or implement terminate any agreements or waive, delay the exercise of, release or assign any material rights or claims thereunder without providing prior notice to Parent;
(m) Except as required by GAAP, revalue any of its assets or make any change in accounting methods, principles or practices;
(n) Make any Tax election or accounting method change (except as required by GAAP) inconsistent with past practice that, individually or in the aggregate, is reasonably likely to adversely affect in any material respect the Tax liability or Tax attributes of Parent or ▇▇▇▇▇▇ Merger Sub, settle or compromise any material Tax liability or consent to any extension or waiver of any limitation period with respect to Taxes;
(o) Take any action that would prevent the Merger from qualifying as a plan reorganization under Section 368(a) of complete the Code or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization an exchange qualifying under Section 351 of Parentthe Code; or
(ep) authorize, resolve, agree Agree in writing or commit otherwise to do take any of the foregoingactions described in Section 4.2 (a) through (o) above.
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