Covenants Relating to Conduct of Business Pending the Closing. Section 5.1 Conduct of Business by Hurricane Pending the Closing. (a) Between the date of this Agreement and the earlier of the Effective Time and the time, if any, at which this Agreement is terminated pursuant to Section 8.1, except (w) as set forth in Section 5.1 of the Hurricane Disclosure Letter, (x) to the extent contemplated by this Agreement and reasonably required in furtherance of the Transactions, (y) as required by applicable Law or (z) as consented to in writing by Cyclone (which consent shall not be unreasonably withheld, delayed or conditioned), Hurricane shall, and shall cause each Hurricane Subsidiary to, conduct its business in all material respects in the ordinary course of business, including by using commercially reasonable efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with Governmental Entities and with customers, suppliers and other Persons with whom it and they have material business relations; provided, however, that (i) no action that is specifically permitted by any clause of Section 5.1(b) shall be deemed a breach of this Section 5.1(a), and (ii) nothing in this Section 5.1 shall be deemed to restrict or preclude Hurricane or any of its Subsidiaries from undertaking the Vortex IPO, any Related IPO Activities, any Related Financing Amendments or any Vortex Sell-Down, in each case with respect to this clause (ii) after consulting with Cyclone and giving due consideration to Cyclone's views with respect thereto. (b) Between the date of this Agreement and the earlier of the Effective Time and the time, if any, at which this Agreement is terminated pursuant to Section 8.1, except (w) as set forth in Section 5.1 of the Hurricane Disclosure Letter, (x) as required by this Agreement, (y) as required by applicable Law or (z) as consented to in writing by Cyclone (which consent shall not be unreasonably withheld, delayed or conditioned), Hurricane shall not, and shall not permit any Hurricane Subsidiary to: (i) declare, set aside, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, shares or other securities of Hurricane or any Hurricane Subsidiary), except dividends and distributions paid or made on a pro rata basis by a Hurricane Subsidiary in the ordinary course of business or by a wholly owned Hurricane Subsidiary to Hurricane or another wholly owned Hurricane Subsidiary; provided, that Hurricane may declare and pay a Hurricane Pre-Closing Dividend up to three (3) times with a record date following the date hereof and prior to the Effective Time. (ii) split, combine, reduce or reclassify any of its issued or unissued capital stock, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, except for any such transaction by a wholly owned Hurricane Subsidiary which remains a wholly owned Hurricane Subsidiary after consummation of such transaction; (iii) except as required by applicable Law or the terms and conditions of any Hurricane Benefit Plan in existence as of the date hereof or as set forth in Section 5.1(b)(iii) of the Hurricane Disclosure Letter, (A) grant any non-equity-based long-term incentive awards other than (except with respect to Hurricane Senior Officers) at times and in amounts in the ordinary course of business consistent with past practice, (B) amend any performance targets with respect to any outstanding bonus or equity awards, (C) increase the compensation or benefits payable or to become payable to any of its directors, officers, employees or individual independent contractors other than, increases in base salaries and target cash incentive compensation at times and in amounts in the ordinary course of business consistent with past practice, provided, that in no event shall Hurricane increase the target cash incentive compensation or the base salary of any Hurricane Senior Officer, other than, with respect to each Hurricane Senior Officer, an ordinary course base salary increase of up to 3%, (D) grant to any of its directors, officers, employees or individual independent contractors any increase in severance or termination pay other than increases in severance or termination pay for new-hires and promoted employees in the ordinary course of business consistent with past practice and permitted in clause (F) below, (E) pay or award, or commit to pay or award, any bonuses or incentive compensation, other than (x) with respect to new hires and promoted employees (other than the Hurricane Senior Officers or individuals who would be Hurricane Senior Officers if hired or promoted to such position as of the date hereof), to the extent provided to similarly situated employees under Hurricane Benefit Plans in the ordinary course of business consistent with past practice, or (y) bonuses (including year-end bonuses) or incentive compensation (including equity awards) at times and in amounts in the ordinary course of business consistent with past practice, (F) enter into any employment, severance, change in control or retention agreement (excluding offer letters that provide for no severance, change in control or retention benefits) with any of its directors, officers, employees or individual independent contractors; provided, that (x) with respect to new hires and promoted employees (other than the Hurricane Senior Officers or individuals who would be Hurricane Senior Officers if hired or promoted to such position as of the date hereof), Hurricane may enter into employment, severance, change in control or retention agreements that provide for severance, change in control or retention benefits provided to similarly situated employees under Hurricane Benefit Plans in the ordinary course of business consistent with past practice and (y) with respect to employees who are terminated prior to the Closing Date (other than the Hurricane Senior Officers or individuals who would be Hurricane Senior Officers if hired or promoted to such position as of the date hereof), Hurricane may enter into severance agreements, providing for cash severance amounts in the ordinary course of business consistent with past practice, (G) other than those employees of Hurricane and its Subsidiaries who are formal participants, as of the date hereof, in Hurricane's Executive Severance Plan, allow any additional employees of Hurricane or any of its Subsidiaries to participate in Hurricane's Executive Severance Plan, except with respect to new-hires and promoted employees in the ordinary course of business consistent with past practice, (H) establish, adopt, enter into, amend or terminate any collective bargaining agreement where Hurricane is the negotiating party, Hurricane Benefit Plan or any plan, program, agreement or arrangement what would be a Hurricane Benefit Plan if in effect as of the date hereof, except as otherwise permitted by this Section 5.1(b)(iii) or any amendments or terminations in the ordinary course of business consistent with past practice that do not contravene the other covenants set forth in this Section 5.1(b)(iii) or, materially increase the cost to Hurricane, in the aggregate, of maintaining such Hurricane Benefit Plan, (I) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any of its directors, officers, employees or individual independent contractors, (J) take any action to accelerate the vesting and/or exercisability of any Hurricane Equity Award, (K) terminate the employment of any Hurricane Senior Officer, other than for cause, (L) hire any employee or individual independent contractor having total annual cash compensation not consistent with Hurricane's current compensation policy, or (M) amend the funding obligation or contribution rate of any Hurricane Benefit Plan or change any underlying assumptions used to calculate benefits payable under any Hurricane Benefit Plan (except as may be required by GAAP or other applicable accounting standard); (iv) make any change in financial accounting policies, principles, practices or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, applicable Law or SEC policy; (v) authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of an equity interest in or a substantial portion of the assets of any Person or any business or division thereof, in each case whether by merger, consolidation, business combination, acquisition of stock or assets, license or formation of a joint venture or otherwise, except for (A) such transactions for consideration (including assumption of liabilities) that does not exceed $150,000,000 in the aggregate or (B) transactions between Hurricane and a wholly owned Hurricane Subsidiary or between wholly owned Hurricane Subsidiaries; (vi) enter into any new material line of business or form or enter into a material partnership, joint venture, strategic alliance or similar arrangement with a third party which would reasonably be expected to have a value to Hurricane, or result in the receipt or making by Hurricane of future payments, in excess of $75,000,000; (vii) amend the Hurricane Governing Documents or permit any Hurricane Significant Subsidiary to adopt any amendments to its governing documents; (viii) other than as contemplated or permitted pursuant to Section 5.1(b)(iii), issue, deliver, grant, sell, pledge, dispose of or encumber, or authorize the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares in its capital stock, voting securities or other equity interest in Hurricane or any Hurricane Subsidiary or any securities convertible into or exchangeable for any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares in its capital stock, voting securities or equity interest or any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock based performance units or take any action to cause to be exercisable any otherwise unexercisable Hurricane Equity Award under any existing Hurricane Equity Plan (except as otherwise required by the express terms of any Hurricane Equity Award outstanding on the date hereof), other than (A) issuances of Hurricane Shares in respect of any exercise of Hurricane Options or the vesting or settlement of Hurricane Equity Awards outstanding on the date hereof and in accordance with their respective present terms or (B) transactions between Hurricane and a wholly owned Hurricane Subsidiary or between wholly owned Hurricane Subsidiaries; (ix) directly or indirectly, purchase, redeem or otherwise acquire, including pursuant to existing share repurchase programs, any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, or establish any new repurchase programs with respect to any such shares, except for (A) acquisitions of Hurricane Shares tendered by holders of Hurricane Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (B) the acquisition by Hurricane of Hurricane Equity Awards in connection with the forfeiture of such awards, and (C) transactions between Hurricane and a wholly owned Hurricane Subsidiary or between wholly owned Hurricane Subsidiaries; (x) redeem, repurchase, prepay (other than prepayments of revolving loans in the ordinary course of business), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respect the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (A) any Indebtedness for borrowed money among Hurricane and wholly owned Hurricane Subsidiaries or among wholly owned Hurricane Subsidiaries, (B) Indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any existing Indebtedness for borrowed money of Hurricane or any of the Hurricane Subsidiaries maturing on or prior to the six (6) month anniversary of the date of such refinancing, in each case in an amount not to exceed the amount of the Indebtedness replaced, renewed, extended, refinanced or refunded (including any accrued and unpaid interest on or third party expenses related to such replacement, renewal, extension, refinancing or refund) and on terms that are not materially less favorable to Hurricane or such Hurricane Subsidiary than the terms of the Indebtedness replaced, renewed, extended, refinanced or refunded, (C) guarantees by Hurricane of Indebtedness for borrowed money of wholly owned Hurricane Subsidiaries or guarantees by wholly owned Hurricane Subsidiaries of Indebtedness for borrowed money of Hurricane or any wholly owned Hurricane Subsidiary, which Indebtedness is incurred in compliance with this Section 5.1(b)(x) , (D) prepayments of Indebtedness of up to $500,000,000 in the aggregate, (E) subject to clause (ii) of the proviso to Section 5.1(a), any Indebtedness as is contemplated by Related Financing Amendments, and (F) Indebtedness for borrowed money not to exceed $150,000,000 in the aggregate incurred by Hurricane or any of the Hurricane Subsidiaries other than in accordance with clauses (A) through (E), inclusive; provided, that nothing contained herein shall prohibit Hurricane and the Hurricane Subsidiaries from making guarantees or obtaining letters of credit or surety bonds for the benefit of commercial counterparties or in connection with pension support obligations, in each case in the ordinary course of business; (xi) make any loans to any other Person, except for loans among Hurricane and its wholly owned Hurricane Subsidiaries or among wholly owned Hurricane Subsidiaries; (xii) sell, lease, license, transfer, exchange, swap or otherwise abandon or dispose of, or subject to any Lien (other than Hurricane Permitted Liens), any of its material properties or assets (including shares of capital stock or other equity interests of Hurricane or any of the Hurricane Subsidiaries), except (A) pursuant to existing agreements in effect prior to the execution of this Agreement, (B) in the case of Liens, as required in connection with any Indebtedness permitted to be incurred pursuant to Section 5.1(b)(x)(B) or (E), (C) sales of inventory, or dispositions of obsolete or worthless equipment, in each case, in the ordinary course of business, (D) non-exclusive licenses of non-material Intellectual Property in the ordinary course of business, (E) such transactions with neither a fair market value of the assets or properties nor an aggregate purchase price that exceeds $150,000,000 in the aggregate, (F) for transactions among Hurricane and its wholly owned Hurricane Subsidiaries or among wholly owned Hurricane Subsidiaries, and (G) subject to clause (ii) of the proviso to Section 5.1(a), the Vortex IPO, the Related IPO Activities, any Vortex-Sell Down or any Related Financing Amendment; (xiii) (A) compromise or settle any claim, litigation, investigation or proceeding, in each case made or pending by or against Hurricane or any of the Hurricane Subsidiaries (for the avoidance of doubt, including any compromise or settlement with respect to matters in which any of them is a plaintiff), or any of their employees, officers or directors in their capacities as such, other than the compromise or settlement of claims, litigation, investigations or proceedings that: (1) involve the payment by Hurricane of an amount not in excess of $20,000,000 for any single claim, litigation, investigation or proceeding (excluding any amounts that insurance companies have agreed to pay under existing insurance policies) or $30,000,000 in the aggregate (excluding any amounts that insurance companies have agreed to pay under existing insurance policies) for all such claims, litigation, investigations or proceedings, (2) do not involve an admission of guilt or impose any injunctive or other non-monetary remedy or a material restriction on Hurricane and the Hurricane Subsidia
Appears in 2 contracts
Sources: Merger Agreement (Huntsman CORP), Merger Agreement (Huntsman CORP)
Covenants Relating to Conduct of Business Pending the Closing. Section 5.1 Conduct of Business by Hurricane Bemis Pending the ClosingEffective Time.
(a) Between the date of this Agreement and the earlier of the Effective Time and the time, if any, at which this Agreement is terminated pursuant to Section 8.1, except (w) as set forth in Section 5.1 of the Hurricane Bemis Disclosure Letter, (x) to the extent as expressly contemplated or expressly required by this Agreement and reasonably required in furtherance of the TransactionsAgreement, (y) as required by applicable Law or (z) as consented to in writing by Cyclone Amcor (which consent shall not be unreasonably withheld, delayed or conditioned), Hurricane Bemis shall, and shall cause each Hurricane Bemis Subsidiary to, conduct its business in all material respects in the ordinary course of business, including by using commercially reasonable best efforts to preserve intact its and their present business organizations and to preserve its and their present relationships with Governmental Entities and with customers, suppliers and other Persons with whom it and they have material business relations; provided, however, that (i) no action that is specifically permitted by any clause of Section 5.1(b) shall be deemed a breach of this Section 5.1(a), and (ii) nothing in this Section 5.1 shall be deemed to restrict or preclude Hurricane or any of its Subsidiaries from undertaking the Vortex IPO, any Related IPO Activities, any Related Financing Amendments or any Vortex Sell-Down, in each case with respect to this clause (ii) after consulting with Cyclone and giving due consideration to Cyclone's views with respect thereto.
(b) Between Without limiting the generality and in furtherance of the foregoing, between the date of this Agreement and the earlier of the Effective Time and the time, if any, at which this Agreement is terminated pursuant to Section 8.1, except (w) as set forth in Section 5.1 of the Hurricane Bemis Disclosure Letter, (x) as expressly contemplated or expressly required by this Agreement, (y) as required by applicable Law or (z) as consented to in writing by Cyclone Amcor (which consent shall not be unreasonably withheld, delayed or conditioned), Hurricane Bemis shall not, and shall cause each Bemis Subsidiary not permit any Hurricane Subsidiary to:
(i) declare(A) amend the Bemis Governing Documents or the governing documents of any Bemis Subsidiary, set aside, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, shares or other securities of Hurricane or any Hurricane Subsidiary), except dividends and distributions paid or made on a pro rata basis by a Hurricane Subsidiary in the ordinary course of business or by a wholly owned Hurricane Subsidiary to Hurricane or another wholly owned Hurricane Subsidiary; provided, that Hurricane may declare and pay a Hurricane Pre-Closing Dividend up to three (3) times with a record date following the date hereof and prior to the Effective Time.
(iiB) split, combine, subdivide, reduce or reclassify any of its issued or unissued capital stockstock or other equity interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stockstock or other equity interests, except for any such transaction by a wholly owned Hurricane Bemis Subsidiary which remains a wholly owned Hurricane Bemis Subsidiary after consummation of such transaction, (C) declare, determine to be paid, set aside, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock or other equity interests, except for (1) any dividends or distributions paid by a direct or indirect wholly owned Bemis Subsidiary to another direct or indirect wholly owned Bemis Subsidiary or to Bemis or (2) ▇▇▇▇▇’▇ regular quarterly cash dividend with record and payment dates consistent with the quarterly record and corresponding payment dates in 2017 and in an amount per Bemis Share per quarter not to exceed $0.31 with respect to 2018 quarterly dividends, $0.32 with respect to 2019 quarterly dividends, and $0.33 with respect to 2020 quarterly dividends, (D) enter into any agreement with respect to the voting of its capital stock or other equity interests, or (E) purchase, repurchase, redeem or otherwise acquire any shares of its capital stock or other equity interests or any securities convertible or exchangeable into or exercisable for any shares of its capital stock or other equity interests (other than (1) pursuant to the forfeiture of, cashless exercise, or withholding of Taxes with respect to, Bemis Equity Awards, in each case in accordance with past practice and as required or permitted by the terms of the Bemis Equity Plan as in effect on the date of this Agreement (or as modified after the date of this Agreement in accordance with the terms of this Agreement) or (2) purchases, repurchases, redemptions or other acquisitions of capital stock or other equity interests of any wholly owned Bemis Subsidiary by Bemis or any other wholly owned Bemis Subsidiary);
(ii) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(iii) except as required by applicable Law or the terms and conditions of any Hurricane Bemis Benefit Plan in existence as of effect on the date hereof or as of this Agreement and set forth in Section 5.1(b)(iii) of the Hurricane Bemis Disclosure Letter, (A) grant any non-equity-based long-term incentive awards other than (except with respect to Hurricane Senior Officers) at times and in amounts in the ordinary course of business consistent with past practiceawards, (B) amend amend, modify or establish any performance targets with respect to Bemis Benefit Plan (including any outstanding bonus plan, program or equity awardsarrangement that would be a Bemis Benefit Plan if it were in existence immediately before the date of this Agreement), (C) modify or increase the compensation or benefits payable or to become payable to any of its directors, officers, employees or individual independent contractors other than, increases than (except in base salaries the case of executive officers and target cash incentive compensation at times and in amounts directors) in the ordinary course of business consistent with past practice, provided, that in no event shall Hurricane increase the target cash incentive compensation or the base salary of any Hurricane Senior Officer, other than, with respect to each Hurricane Senior Officer, an ordinary course base salary increase of up to 3%business, (D) grant to any of its directors, officers, employees or individual independent contractors any increase in severance or termination pay other than increases in severance or termination pay for new-hires and promoted employees in the ordinary course of business consistent with past practice and permitted in clause (F) below, (E) pay or award, or commit to pay or award, any bonuses or incentive compensation, other than (x) with respect to new hires and promoted employees (other than the Hurricane Senior Officers or individuals who would be Hurricane Senior Officers if hired or promoted to such position as of the date hereof), to the extent provided to similarly situated employees under Hurricane Benefit Plans in the ordinary course of business consistent with past practice, or (y) bonuses (including year-end bonuses) or incentive compensation (including equity awards) at times and in amounts in the ordinary course of business consistent with past practice, (F) enter into any employment, severance, change in control or retention agreement (excluding offer letters that provide for no severance, change in control or retention benefits) with any of its directors, officers, employees or individual independent contractors; provided, that (x) with respect to new hires and promoted employees (other than the Hurricane Senior Officers or individuals who would be Hurricane Senior Officers if hired or promoted to such position as of the date hereof), Hurricane may enter into employment, severance, change in control or retention agreements that provide for severance, change in control or retention benefits provided to similarly situated employees under Hurricane Benefit Plans in the ordinary course of business consistent with past practice and (y) with respect to employees who are terminated prior to the Closing Date (other than the Hurricane Senior Officers or individuals who would be Hurricane Senior Officers if hired or promoted to such position as of the date hereof), Hurricane may enter into severance agreements, providing for cash severance amounts in the ordinary course of business consistent with past practice, (G) other than those employees of Hurricane and its Subsidiaries who are formal participants, as of the date hereof, in Hurricane's Executive Severance Plan, allow any additional employees of Hurricane or any of its Subsidiaries to participate in Hurricane's Executive Severance Plan, except with respect to new-hires and promoted employees in the ordinary course of business consistent with past practice, (HE) establish, adopt, enter into, amend or terminate any collective bargaining agreement where Hurricane is the negotiating partyor other Contract with any labor union, Hurricane works council or other labor organization or Bemis Benefit Plan or any benefit or compensation plan, program, policy, scheme, agreement or arrangement what that would be a Hurricane Bemis Benefit Plan if in effect as of the date hereof, except as otherwise permitted by this Section 5.1(b)(iii) or any amendments or terminations in the ordinary course of business consistent with past practice that do not contravene the other covenants set forth in this Section 5.1(b)(iii) or, or materially increase the cost to HurricaneBemis, in the aggregate, of maintaining such Hurricane Bemis Benefit Plan, (IF) take any action to accelerate any the vesting, payment or benefit, or the funding of any payment or benefit, benefit payable or to become payable to any of its directors, officers, employees or individual independent contractors, (J) take any action to accelerate the vesting and/or exercisability of any Hurricane Equity Award, (KG) terminate the employment of any Hurricane Bemis Senior Officer, other than for cause, (LH) hire any officer, employee or individual independent contractor having total target annual cash compensation not consistent with Hurricane's current compensation policyof more than $250,000, or any Bemis Senior Officer, or
(MI) amend implement or announce any employee layoffs (other than for cause or in the funding obligation ordinary course of business) or contribution rate of any Hurricane Benefit Plan or change any underlying assumptions used to calculate benefits payable under any Hurricane Benefit Plan (except as may be required by GAAP or other applicable accounting standard)location closings;
(iv) make any material change in financial accounting policies, principles, practices or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, applicable Law or SEC policy;
(v) authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of an equity interest in or a substantial portion of the assets of any Person or any business or division thereofbusiness, in each case whether by merger, consolidation, business combination, acquisition purchase of stock property or assets, license or formation of a joint venture venture, licenses or otherwise, except for (A) such transactions for consideration (including assumption of liabilities) that does not exceed (when taken together with all other such transactions) $150,000,000 10 million in the aggregate (valuing any non-cash consideration at its fair market value as of the date of the agreement for such acquisition); provided that neither Bemis nor any Bemis Subsidiary shall enter into any such transaction that would, or (B) transactions between Hurricane and a wholly owned Hurricane Subsidiary would reasonably be expected to, prevent, materially delay or between wholly owned Hurricane Subsidiariesmaterially impair the consummation of the Transactions;
(vi) enter into any new material line of business other than any line of business that is reasonably ancillary to or form or enter into a material partnership, joint venture, strategic alliance or similar arrangement with a third party which would reasonably be expected to have a value to Hurricane, or result foreseeable extension of any line of business engaged in by Bemis as of the receipt or making by Hurricane date of future payments, in excess of $75,000,000this Agreement;
(vii) amend the Hurricane Governing Documents or permit any Hurricane Significant Subsidiary to adopt any amendments to its governing documents;
(viii) other than as contemplated or permitted pursuant to Section 5.1(b)(iii), issue, deliver, grant, sell, transfer, pledge, dispose of or encumber, or authorize the issuance, delivery, grant, sale, transfer, pledge, disposition or encumbrance of, any shares in its of capital stock, voting securities or other equity interest interests in Hurricane Bemis or any Hurricane Bemis Subsidiary or any securities convertible into or exchangeable for any such shares, voting securities or equity interestinterests, or any rights, warrants or options to acquire any such shares in of its capital stock, voting securities or equity interest interests or any "“phantom" ” stock, "“phantom" ” stock rights, stock appreciation rights or stock based performance units or take any action to cause to be exercisable any otherwise unexercisable Hurricane Bemis Equity Award under any existing Hurricane Bemis Equity Plan (except as otherwise required by the express terms of any Hurricane Bemis Equity Award outstanding as in effect on the date hereof), other than than
(A) issuances of Hurricane Bemis Shares in respect of any exercise of Hurricane Options or the vesting or settlement of Hurricane Bemis Equity Awards outstanding on the date hereof and in accordance with their respective present terms as in effect on the date hereof or (B) transactions between Hurricane Bemis and a wholly owned Hurricane Bemis Subsidiary or between wholly owned Hurricane Bemis Subsidiaries;
(ixviii) directly or indirectlycreate, purchaseincur, redeem assume or otherwise acquire, including pursuant to existing share repurchase programs, any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, or establish any new repurchase programs become liable with respect to any such sharesIndebtedness (whether evidenced by a note or other instrument, except for pursuant to an issuance of debt securities, financing lease, sale-leaseback transaction or otherwise), other than (A) acquisitions of Hurricane Shares tendered by holders of Hurricane Equity Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto, (B) the acquisition by Hurricane of Hurricane Equity Awards in connection with the forfeiture of such awards, and (C) transactions Indebtedness solely between Hurricane Bemis and a wholly owned Hurricane Bemis Subsidiary or between wholly owned Hurricane Subsidiaries;
(x) redeem, repurchase, prepay (other than prepayments of revolving loans Bemis Subsidiaries in the ordinary course of business), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respect the terms of any Indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (A) any Indebtedness for borrowed money among Hurricane and wholly owned Hurricane Subsidiaries or among wholly owned Hurricane Subsidiaries, (B) Indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any existing Indebtedness for borrowed money of Hurricane borrowings by Bemis or any Bemis Subsidiary in the ordinary course of business under the Hurricane Bemis Credit Agreement and guarantees of such borrowings issued by the Bemis Subsidiaries maturing on or prior to the six (6) month anniversary of the date of such refinancing, in each case in an amount not to exceed the amount of the Indebtedness replaced, renewed, extended, refinanced or refunded (including any accrued and unpaid interest on or third party expenses related to such replacement, renewal, extension, refinancing or refund) and on terms that are not materially less favorable to Hurricane or such Hurricane Subsidiary than extent required under the terms of the Indebtedness replaced, renewed, extended, refinanced or refunded, Bemis Credit Agreement as in effect on the date hereof and (C) guarantees by Hurricane of Indebtedness for borrowed money of wholly owned Hurricane Subsidiaries or guarantees by wholly owned Hurricane Subsidiaries of Indebtedness for borrowed money of Hurricane or any wholly owned Hurricane Subsidiary, which Indebtedness is incurred in compliance connection with this Section 5.1(b)(x) , (D) prepayments of Indebtedness of up to $500,000,000 in the aggregate, (E) subject to clause (ii) of the proviso to Section 5.1(a), any Indebtedness as is contemplated by Related Financing Amendments, and (F) Indebtedness for borrowed money not to exceed $150,000,000 in the aggregate incurred by Hurricane or any of the Hurricane Subsidiaries other than in accordance with clauses (A) through (E), inclusive; provided, that nothing contained herein shall prohibit Hurricane and the Hurricane Subsidiaries from making guarantees or obtaining letters of credit or surety bonds for the benefit of commercial counterparties or in connection with pension support obligations, in each case issued in the ordinary course of business;
(xiix) make any loans to loans, advances or capital contributions to, or investments in, any other Person, except for loans among Hurricane and its Person (other than Bemis or any wholly owned Hurricane Subsidiaries or among wholly owned Hurricane SubsidiariesBemis Subsidiary), in each case, other than in the ordinary course of business;
(xiix) sell, lease, license, transfer, exchange, swap swap, let lapse, cancel, pledge, abandon or otherwise abandon or dispose of, or subject to any Lien (other than Hurricane any Bemis Permitted LiensLien (excluding sections (iv) and (ix) of such definition), any of its material properties or assets (including shares of capital stock or other equity interests of Hurricane Bemis or any of the Hurricane SubsidiariesBemis Subsidiaries and including Intellectual Property), except (A) pursuant to existing agreements in effect prior to the execution of this Agreement, (B) in the case of Liens, as required in connection with any Indebtedness permitted to be incurred pursuant to Section 5.1(b)(x)(B) or (E5.1(b)(viii), (CB) sales of inventory, or dispositions of obsolete or worthless equipment, in each case, in the ordinary course of business, (DC) non-exclusive licenses of non-material Intellectual Property in the ordinary course of business, (ED) such transactions with neither a fair market value of the assets or properties nor an aggregate purchase price that exceeds (when taken together with all other such transactions) $150,000,000 500,000 in the aggregateaggregate (valuing any non-cash consideration at its fair market value as of the date of the agreement for such transaction), and (FE) for transactions among Hurricane Bemis and its wholly owned Hurricane Bemis Subsidiaries or among wholly owned Hurricane Bemis Subsidiaries;
(xi) without limiting Section 6.8, settle, or offer or propose to settle, any Proceeding involving or against Bemis or any Bemis Subsidiary, other than (A) ordinary course disputes with vendors, customers or employees in which no litigation or arbitration commences and (GB) subject to clause settlements or compromises of any Proceeding where (ii1) the amount paid in an individual settlement or compromise by Bemis (and not including any amount paid by ▇▇▇▇▇’▇ third-party insurance carriers or third parties) does not exceed the amount set forth in Section 5.1(b)(xi) of the proviso Bemis Disclosure Letter and (2) there is no material non-monetary relief.
(xii) (A) make or change any material Tax election, change any Tax accounting period for purposes of a material Tax or material method of Tax accounting, (B) file any material amended Tax Return, (C) settle or compromise any audit or Proceeding relating to Taxes that involves a material amount of Taxes, (D) enter into any “closing agreement” within the meaning of Section 5.1(a), 7121 of the Vortex IPO, the Related IPO Activities, any Vortex-Sell Down Code (or any Related Financing Amendmentsimilar provision of state, local, or non-U.S. Law) with respect to any material Tax, (E) surrender any right to claim a material Tax refund, or (F) take any action that would require the filing of a “gain recognition agreement” (within the meaning of the Treasury Regulations promulgated under Section 367 of the Code) by Bemis or its Subsidiaries to avoid current recognition of a material amount of income or gain for U.S. federal income tax purposes;
(xiii) make or commit to any new capital expenditure, other than (A) compromise in connection with the repair or settle any claimreplacement of facilities, litigation, investigation properties or proceeding, assets destroyed or damaged due to casualty or accident (if covered by third party insurance or if the portion of which that is not covered by insurance is less than $10 million) or (B) in each case made or pending by or against Hurricane or any the ordinary course of business and in the aggregate not in excess of the Hurricane Subsidiaries amounts reflected in ▇▇▇▇▇’▇ capital expenditure budget for each of 2018 and 2019 set forth in Section 5.1(b)(xiii) of the Bemis Disclosure Letter;
(for xiv) except in the avoidance ordinary course of doubt, including any compromise business or settlement with respect to matters that are expressly permitted by the other provisions of this Section 5.1(b), (A) enter into any Contract that would, if entered into prior to the date hereof, be a Bemis Material Contract, or (B) modify, amend or terminate any Bemis Material Contract or waive, release or assign any material rights, benefits or claims thereunder; or
(xv) agree, resolve or commit, in which writing or otherwise, to do any of them is a plaintiff)the foregoing.
(c) Without in any way limiting any party’s rights or obligations under this Agreement, nothing contained in this Agreement shall give Amcor, directly or any indirectly, the right to control or direct the operations of their employeesBemis prior to the Effective Time. Prior to the Effective Time, officers or directors in their capacities as suchBemis shall exercise, other than consistent with the compromise or settlement terms and conditions of claimsthis Agreement, litigation, investigations or proceedings that: (1) involve the payment by Hurricane of an amount not in excess of $20,000,000 for any single claim, litigation, investigation or proceeding (excluding any amounts that insurance companies have agreed to pay under existing insurance policies) or $30,000,000 in the aggregate (excluding any amounts that insurance companies have agreed to pay under existing insurance policies) for all such claims, litigation, investigations or proceedings, (2) do not involve an admission of guilt or impose any injunctive or other non-monetary remedy or a material restriction on Hurricane complete control and the Hurricane Subsidiasupervision over its and its Subsidiaries’ respective operations.
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Sources: Transaction Agreement