Interim Operations. (a) Prior to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly provided for in this Agreement, unless Parent has consented in writing thereto (such consent not to be unreasonably withheld or delayed), the Company: (i) shall, and shall cause each of the Company Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted; (ii) shall use commercially reasonable efforts, and shall cause each of the Company Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them; (iii) shall not, and shall cause each of the Company Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments; (iv) shall give prompt notice to Parent of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement; (v) shall not, and shall not permit any of the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rights; (vi) shall not, and shall not permit any of the Company Subsidiaries to, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans; (vii) shall not, and shall not permit any of the Company Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrants; (viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, or to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; (x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, the terms of any Company Employee Plans, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except in the case of awards not involving the acquisition of securities, in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments required under Company Employee Plans in effect on the date hereof; (xi) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances to any other person; (xii) shall not, and shall not permit any of the Company Subsidiaries to, (x) make, revoke or change any material election with respect to Taxes unless required by applicable law or (y) settle or compromise any material Tax liability; (xiii) shall not, and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which are, in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a whole; (xiv) shall not, and shall not permit any of the Company Subsidiaries to, except for the payment of reasonable professional fees relating to the Merger or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptable, to Parent), pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary course; (xv) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure Schedule; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld; (xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant); (xvii) shall not, and shall not permit any of the Company Subsidiaries to, enter into any hedging, option, derivative or other similar transaction; (xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and (xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions. (b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in this Agreement, unless the Company has consented in writing thereto (such consent not to be unreasonably withheld or delayed), Parent: (i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted; (ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them; (iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments; (iv) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement; (v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and (vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Liposome Co Inc)
Interim Operations. (a) Prior to the Effective Time, except as ------------------ set forth in Section 5.2 of the Company Disclosure Schedule Letter or as expressly provided for in contemplated by any other provision of this Agreement, unless Parent Sub has consented in writing thereto (such consent not to be unreasonably withheld or delayed)thereto, the Company:
(i) shall, and shall cause each of the Company its Subsidiaries to, conduct its operations in the and business according to their usual, regular and ordinary course consistent with the manner as heretofore conductedpast practice;
(ii) shall use commercially reasonable its best efforts, and shall cause each of the Company its Subsidiaries to use commercially reasonable its best efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of the Company its Subsidiaries not to, amend their respective Certificates Articles of Incorporation or Bylaws bylaws or comparable governing instruments;
(iv) shall give prompt notice to Parent promptly notify Sub of (x) any material change in its condition (financial or otherwise), business, prospects, properties, assets, liabilities or the normal course of its business or of its properties, (y) any material litigation or material governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), or (z) the breach of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementherein;
(v) shall notpromptly deliver to Sub correct and complete copies of any report, and shall not permit any statement or schedule filed with the SEC subsequent to the date of the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rightsthis Agreement;
(vi) shall not, and shall not permit any of the Company its Subsidiaries to, effect authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any stock split merger, consolidation or otherwise change its capitalization business combination (other than the Merger), release or issue relinquishment of any shares material contract rights, or any acquisition or disposition of its capital stock assets or securities convertible into or exchangeable or exercisable for shares in excess of its capital stock, except upon exercise $100,000 in the aggregate other than in the ordinary course of options outstanding as of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plansbusiness consistent with past practice;
(vii) shall not, and shall not permit any of the Company its Subsidiaries to, (x) grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or its Subsidiaries or (y) accelerate, amend or change the period of exercisability of options or restricted stock granted under any employee stock plan or, except as contemplated by Section 4.3(a)(i), authorize cash payments in exchange for any options granted under any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrantssuch plans;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, or to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, respect the terms of any Company Employee the Benefit Plans, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except in the case of awards not involving the acquisition of securities, in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments required under Company Employee Plans in effect on the date hereof;
(xiix) shall not, and shall not permit any of its Subsidiaries to (x) increase or agree to increase the Company compensation payable or to become payable to its officers or, other than increases in accordance with past practice which are not material, to its employees or (y) enter into any collective bargaining agreement;
(x) shall not, and shall not permit any of its Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances to any other person, except in the case of clause (x) for borrowings under existing credit facilities in the ordinary course of business and, except in the case of clause (y) for advances consistent with past practice which are not material;
(xi) shall not, and shall not permit any of its Subsidiaries to, (x) materially change any practice with respect to Taxes, (y) make, change or revoke any material Tax election, or (z) settle or compromise any material dispute involving a Tax liability;
(xii) shall not, and shall not permit any of the Company its Subsidiaries to, (x) makedeclare, revoke set aside or change pay any material election dividend or make any other distribution or payment with respect to Taxes unless required by applicable law any shares of its capital stock or other ownership interests or (y) settle directly or compromise indirectly redeem, purchase or otherwise acquire any material Tax liabilityshares of its capital stock or capital stock of any of its Subsidiaries, or make any commitment for any such action or (z) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
(xiii) shall not, and shall not permit any of the Company its Subsidiaries to, authorize issue, deliver, sell, pledge or otherwise encumber any shares of its capital expenditures which arestock, any other securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, securities or convertible securities (other than the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date hereof in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a wholeaccordance with their present terms);
(xiv) shall not, and shall not permit any of the Company its Subsidiaries to, make or agree to make any capital expenditure or expenditures with respect to property, plant or equipment which, individually or in a series of related transactions, is in excess of $100,000 or, in the aggregate, are in excess of $500,000 except for as otherwise in the payment ordinary course of reasonable professional fees relating business consistent with past practice in order to the Merger satisfy actual or otherwise expected contractual commitments to customers;
(xv) shall not, and reasonable fees to financial advisors shall not permit any of its Subsidiaries to, change any accounting principles or practices;
(which financial advisory fees have heretofore been disclosed or are otherwise acceptablexvi) shall not, to Parent)and shall not permit any of its Subsidiaries to, pay, discharge discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate), other than the paymentspayment, discharges discharge or satisfactionssatisfaction, in the ordinary course of business and consistent with past practicepractice or in accordance with their terms, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as consolidated financial statements (or the notes thereto) of a date prior to the date hereof Company included in the Company Reports or subsequently incurred thereafter in the ordinary course of business and consistent with past practice or collectpractice, or accelerate the collection waive any material benefits of, or agree to modify in any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xv) shall notmaterial respect, and shall not permit any of confidentiality, standstill, nonsolicitation or similar agreement to which the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure ScheduleSubsidiary is a party; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);and
(xvii) shall not, and shall not permit any of the Company its Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetingstake, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and
agree (xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise) or resolve to take, to take any of the foregoing actions.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in this Agreement, unless the Company has consented in writing thereto (such consent not to be unreasonably withheld or delayed), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 1 contract
Interim Operations. Seller covenants and agrees that, ------------------ except (ai) Prior to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly provided for in contemplated by this Agreement; (ii) as required by Law; (iii) as disclosed in the Disclosure Schedule; or (iv) with the prior written consent of Purchaser, unless Parent has consented in writing thereto (such consent not to be unreasonably withheld or delayed)withheld, after the Companydate hereof and prior to the Closing Date:
(ia) shall, and Seller shall cause each of the Company Subsidiaries to, conduct its operations in the ordinary course use reasonable efforts consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of the Company Subsidiaries to use commercially reasonable efforts, Seller's past practices to preserve the Business intact their business organizations in all material respects and goodwill, keep available generally conduct the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of the Company Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to Parent of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than Business in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rightsthe Business consistent with past practice;
(vib) shall not, and Seller shall not permit any of the Company Subsidiaries tosell, effect any stock split lease or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans;
(vii) shall not, and shall not permit any of the Company Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrants;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, or to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, the terms dispose of any Company Employee Plans, including, without limitation, any employment, severance assets or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except properties included in the case of awards not involving the acquisition of securities, Purchased Assets (other than Inventory in the ordinary course of business consistent with past practicepractices);
(c) Seller shall not, with respect to the Business, do any act or omit to do any act whereby any Transferred Intellectual Property may lapse, become abandoned, dedicated to the public, or unenforceable, or enter into any material commitment, transaction, contract or agreement concerning the Transferred Intellectual Property;
(d) Seller shall not grant any bonus, salary increases increase, severance or termination pay to, or otherwise increase the compensation or benefits of, any employees of the Business, except obligations pursuant to any employee of existing Plans;
(e) Seller shall not, with respect to the Company or Business, change in any material respect any of the Company Subsidiaries accounting principles, methods or practices used by it (except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments as required under Company Employee Plans in effect on the date hereofby GAAP);
(xif) Seller shall not, and with respect to the Business, modify, amend or terminate, or waive, release or assign any material rights or claims with respect to, any Contract;
(g) Seller shall not permit any of the Company Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise Purchased Assets to become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances subjected to any Encumbrance other personthan the Permitted Encumbrances;
(xiih) Seller shall not, and shall not permit any of the Company Subsidiaries to, (x) make, revoke or change any material election with respect to Taxes unless the Business, enter into any lease or sublease of real property (whether as a lessor, sublessor, lessee or sublessee) other than the Real Property Lease or modify, amend, terminate or fail to exercise any right to renew the Real Property Lease;
(i) Seller shall not, with respect to the Business, commit to make as of a date subsequent to the Closing any capital expenditure which individually is in excess of $100,000, except capital expenditures reasonably required in the event of exigent circumstances or which are funded by insurance or other third parties;
(j) Except for the persons listed on Schedule 4.1(j), with respect to the Business, Seller shall not hire any new employee with an annual base salary in excess of $75,000, promote any employee except in order to fill a position vacated after the date of this Agreement, or engage any consultant or independent contractor pursuant to a binding commitment that is non-terminable without the payment of fees in excess of a minimum of $75,000;
(k) Seller shall not, with respect to the Business, adopt, enter into, or amend any Plan, except (i) as required pursuant to contractual arrangements in effect as of the date hereof or as required or permitted under this Agreement, (ii) as required by applicable law or (yiii) settle as may apply to any employee other than employees or compromise any material Tax liabilityformer employees of the Business;
(xiiil) Seller shall not, and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which are, in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a whole;
(xiv) shall not, and shall not permit any of the Company Subsidiaries to, except for the payment of reasonable professional fees relating with respect to the Merger or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptableBusiness, to Parent), pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xv) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure Schedule; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);
(xvii) shall not, and shall not permit any of the Company Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and
(xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in this Agreement, unless the Company has consented in writing thereto (such consent not to be unreasonably withheld or delayed), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate change in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; providedany of its co-op advertising policies, howeverproduct return policies, that no such notification shall affect the representationsproduct maintenance policies, warrantiesservice policies, covenants product modification or agreements of the parties upgrade policies, or the conditions to the obligations of the parties under this Agreementpersonnel policies;
(vm) Seller shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall notBusiness, and shall not permit any of Parent Subsidiaries to, agree, in writing authorize or otherwise, enter into an agreement to take do any of the foregoing actionsforegoing. Notwithstanding the provisions of this Section 4.1, nothing in this Agreement shall prevent Seller from engaging in any activity with respect to any of its businesses other than the Business.
Appears in 1 contract
Interim Operations. In recognition of the Parties’ mutual interest in providing for the formation, organization, ownership and operation of the NC Health Plan; and taking such actions as may reasonably necessary for PlanCo and the NC Health Plan to submit a competitive bid for, be awarded and perform under, an NCDHB Contract, during the Interim Period, subject to and in accordance with the provisions of the Transaction Documents, the Parties agree to use Reasonable Efforts to:
(a) Prior take or cause to be taken, any and all actions, and do, or cause to be done, any and all things necessary, proper or advisable to (i) register PlanCo as a licensed insurance company with the North Carolina Department of Insurance (“NCDOI”); (ii) obtain such licensure from the State of North Carolina (whether through the NCDOI or otherwise) as may be necessary to be awarded and perform under an NCDHB Contract; and (iii) to structure the management and operations of PlanCo so as to facilitate the qualification of the NC Health Plan as an Eligible Health Plan;
(b) upon issuance of the NC RFP, take or cause to be taken, any and all actions, and do, or cause to be done, any and all things necessary, proper or advisable to submit a competitive bid for the receipt of an NCDHB Contract, which bid shall be submitted on or prior to the Effective Time, except as Submission Deadline and in compliance with the requirements set forth in Section 5.2 of the Company Disclosure Schedule or as expressly provided for in this Agreement, unless Parent has consented in writing thereto (such consent not to be unreasonably withheld or delayed), the Company:
(i) shall, and shall cause each of the Company Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conductedNC RFP;
(iic) shall use commercially reasonable effortseffect all filings and obtain all permits, consents, clearances, approvals and authorizations of all Governmental Authorities and other Persons necessary to consummate the Contemplated Transactions, and shall cause each of the Company Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations provide such assistance and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of the Company Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to Parent of any representation or warranty made by it contained information as may reasonably be required in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfiedconnection therewith; provided, however, that, whether during the Interim Period or otherwise, any and all analyses, appearances, meetings, discussions, presentations, memoranda, filings, arguments, and proposals made by or on behalf of any Party before any Governmental Authority in connection with the Contemplated Transactions shall be disclosed to all other Parties in advance thereof, it being the intent that no the Parties will consult and cooperate with one another, and consider in good faith the views of each other, in connection with any such notification shall affect the representationsanalyses, warrantiesappearances, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementmeetings, discussions, presentations, memoranda, filings, arguments, and proposals;
(v) shall not, and shall not permit any of the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rights;
(vi) shall not, and shall not permit any of the Company Subsidiaries to, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans;
(vii) shall not, and shall not permit any of the Company Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrants;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, or to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, the terms of any Company Employee Plans, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except in the case of awards not involving the acquisition of securities, in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments required under Company Employee Plans in effect on the date hereof;
(xi) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances to any other person;
(xii) shall not, and shall not permit any of the Company Subsidiaries to, (x) make, revoke or change any material election with respect to Taxes unless required by applicable law or (y) settle or compromise any material Tax liability;
(xiii) shall not, and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which are, in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a whole;
(xiv) shall not, and shall not permit any of the Company Subsidiaries to, except for the payment of reasonable professional fees relating to the Merger or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptable, to Parent), pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwised) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent accordance with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xv) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure Schedule; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach Section 4.2 of this covenant);
(xvii) shall notAgreement, recruit, build and shall not permit any develop a network of the Company Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative Health Care Providers for purposes of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation providing services on behalf of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulationNC Health Plan; and
(xixe) shall not, perform such additional services set forth on Exhibit I to this Agreement (the “Additional Services Exhibit”) in accordance with and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
(b) Prior subject to the Effective Time, except as terms and conditions set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in this Agreement, unless the Company has consented in writing thereto (such consent not to be unreasonably withheld or delayed), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actionsthereon.
Appears in 1 contract
Sources: Joint Venture Agreement (Carolina Complete Health Network, Inc.)
Interim Operations. (a) Prior The Company and REDI each covenants and agrees as to itself and, in the Effective Time, except as set forth in Section 5.2 case of the Company Disclosure Schedule or Company, as expressly provided for in this Agreement, unless Parent has consented in writing thereto (such consent not to be unreasonably withheld or delayed), the Company:
(i) shall, and shall cause each of the Company Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of the Company Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of the Company Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to Parent of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, howeversubsidiaries, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rights;
(vi) shall not, and shall not permit any of the Company Subsidiaries to, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of after the date hereof and prior to purchase shares of Company Common Stock under the Company Stock Option Plans;
Closing (vii) shall notunless, and shall not permit any of in the Company Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities case of the Company or any of its subsidiaries, REDI, or in the case of REDI, the Company, shall otherwise expressly consent in writing and except as otherwise expressly permitted or contemplated by this Agreement or set forth in Section 5.1 of the Company Subsidiaries Disclosure Letter or amend or otherwise modify any outstanding options or warrantsthe REDI Disclosure Letter, respectively):
(a) the business of it and its subsidiaries shall be conducted only in the ordinary and usual course and, to the extent consistent therewith, each of it and its subsidiaries shall use its reasonable best efforts to (i) preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates; (ii) maintain and keep its properties and assets in good repair and condition, subject to ordinary wear and tear; and (iii) maintain in effect all existing governmental permits that are required for the continued operation of its and its subsidiaries’ respective businesses in all material respects as they are currently conducted;
(viiib) shall not, and shall not permit neither it nor any of the Company Subsidiaries toits subsidiaries shall (i) sell or pledge or agree to sell or pledge any stock, limited liability company interests or other equity interests owned by it; (ii) except as required by applicable law amend its certificate of formation, limited liability company agreement, memorandum or articles of association; (iii) split, combine, subdivide or reclassify any of its outstanding limited liability company interests or other equity interests; (iv) declare, set aside, make aside or pay any dividend or make any other distribution, distribution payable in cash, stockproperty, property limited liability company interests or otherwiseother equity interests in respect of any limited liability company interests or other equity interests (for the avoidance of doubt, with this provision, in respect of REDI, shall be deemed to be an amendment to any provisions to the contrary in REDI’s limited liability company agreement), provided that, notwithstanding the foregoing, (x) the Company shall be permitted to make distributions to the Current ARCA Members in accordance with the terms of (or as approved by its capital stockBoard under the terms of) its limited liability company agreement (including, without limitation, distributions in accordance with Section 8.1. thereof in respect of the payment of taxes) prior to the Closing so long as the Company has the Requisite Company Cash Balance as of the Closing and the Company Closing Cash Balance exceeds the Requisite REDI Cash Balance by $30 million or more after giving effect to all distributions by the Company after the date hereof (including any declared but unpaid distributions) and (y) REDI shall be permitted to make distributions to the Contributors in accordance with the terms of (or as approved by its Board under the terms of) its limited liability company agreement prior to Closing so long as REDI has the Requisite REDI Cash Balance as of the Closing; or (v) repurchase, redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stocklimited liability company interests or other equity interests or any securities or other equity interests convertible into or exchangeable or exercisable for any of its limited liability company interests or other equity interests;
(ixc) neither it nor any of its subsidiaries shall not(i) issue, sell, pledge, dispose of or encumber any additional limited liability company interests, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any of its limited liability company interests or other equity interests of any class or any other property or assets; (ii) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any property or assets; or (iii) (A) make or authorize or commit for any capital expenditures in excess of $1,000,000 individually or the following amounts in the aggregate: (1) $6,000,000 in the aggregate through January 31, 2002, (2) $10,000,000 in the aggregate through February 28, 2002, (3) $14,000,000 in the aggregate through March 31, 2002, (4) $18,000,000 in the aggregate through April 30, 2002, and shall not permit (5) $22,000,000 in the aggregate through June 17, 2002 or (B) make any acquisition of the Company Subsidiaries to(by merger, take consolidation, acquisition of stock or fail to take assets or any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall notother means), and shall not permit or any of the Company Subsidiaries toinvestment in, amend in any material respect, except as required by applicable law assets or in response to changes in applicable law, the terms stock of any Company Employee Plans, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder other Person (except in the case other than acquisitions of awards not involving the acquisition of securities, assets in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments required under Company Employee Plans in effect on the date hereof;
(xid) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances to any other person;
(xii) shall not, and shall not permit any of the Company Subsidiaries to, (x) make, revoke or change any material election with respect to Taxes unless as may be required by applicable law or regulation, neither it nor any of its subsidiaries shall (x) grant any severance or termination pay to, increase the salary, wage, bonus or other compensation of, or enter into any employment or severance agreement with any director, manager, officer or other employee of it or any of its subsidiaries, or (y) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any incentive, bonus, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock option or other stock based plan, any employment or severance agreement, plan, policy or arrangement, other employee benefit plan or any applicable “change of control” or similar provision in any plan, agreement, policy or arrangement that covers current or former employees, officers, directors or managers of it or any of its subsidiaries (or any trust or fund thereunder) or establish any target bonus levels, the size of any bonus pool, or any objectives for the achievement of any target bonus or any target bonus levels;
(e) neither it nor any of its subsidiaries shall settle or compromise any material Tax liability;
(xiii) shall notclaims or litigation, and shall not permit modify, amend or terminate any of the Company Subsidiaries toits material Contracts (including, authorize capital expenditures which arewithout limitation, any Contract disclosed in response to Section 3.29), in each case other than any such termination that will occur by the aggregate, in excess terms of $1 million for the Company and the Company Subsidiaries taken as a whole;
(xiv) shall not, and shall not permit such Contract without any action by it or any of its subsidiaries or any such modification, amendment or termination that is permitted under the Company Subsidiaries toterms of such Contract to be made by the other party or parties to such Contract, except for the payment of reasonable professional fees relating or enter into any Contract that would have been required to the Merger or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been be disclosed or are otherwise acceptable, to Parent), pay, discharge described in Section 3.29 of its Disclosure Letter if such Contract had been entered into on or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof (other than license agreements with respect to the sale of quote information or subsequently incurred redisplay or republication of its limit order book) or waive, release, relinquish or assign any material Contract (including, without limitation, any Contract disclosed in response to Section 3.29) (or any of its rights or claims thereunder), in each case other than any such waiver, release, relinquishment or assignment that will occur by the ordinary course terms of business and such Contract without any action by it or any of its subsidiaries or is permitted under the terms of such Contract to be made by the other party or parties to such Contract, or cancel or forgive any material indebtedness owed to it or any of its subsidiaries;
(f) it shall not make any material tax election, amend any Tax elections currently in effect, change or consent to any change in any method of accounting for any Tax purpose, or file any Tax Return on a basis that is not consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary coursepractice;
(xvg) shall notexcept as required by applicable law or regulation, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure Schedule; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payable payee to be cancelled, canceled or terminated or materially altered, except in the ordinary and usual course of business and consistent with past practice and following written notice to Parent business;
(provided that an insurer refusing to renew h) except as may be required as a policy result of a change in law or in GAAP, neither it nor any of its subsidiaries shall not be deemed change any of the accounting practices, principles or methods used by it;
(i) neither it nor any of its subsidiaries shall adopt a breach plan of this covenantcomplete or partial liquidation, dissolution (except as required by applicable law), merger, consolidation, restructuring, recapitalization or other reorganization of it or any of its subsidiaries (other than the transactions contemplated hereby);
(xviij) neither it nor any of its subsidiaries shall not(i) incur, and assume, modify or prepay any long-term debt or incur, modify or assume any short-term debt, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any third party, including by means of any “keep well” or other agreement to support or maintain any financial statement condition of another Person, or (iii) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates consistent with past practice;
(k) neither it nor any of its subsidiaries shall not permit enter into any agreement or arrangement, or amend or modify any existing agreement or arrangement, or engage in any new transaction, with any of their respective members or affiliates on terms to it or any of its subsidiaries less favorable than could be reasonably expected to have been obtained with an unaffiliated third party on an arm’s-length basis; and
(l) neither it nor any of its subsidiaries shall authorize or enter into an agreement to do any of the Company Subsidiaries toforegoing or take any action that would knowingly cause any of the representations or warranties, enter into in the case of REDI, of REDI or any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetingsthe Contributors, or correspondence between in the case of the Company or any of its subsidiaries, of the Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM)Current ARCA Members, except, in each case, as may be inconsistent with applicable law or regulation; and
(xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in this Agreement, unless the Company has consented in writing thereto (such consent not to be unreasonably withheld or delayed), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming to be untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actionsincorrect.
Appears in 1 contract
Interim Operations. (a) Prior to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly provided for in contemplated by any other provision of this Agreement, unless Parent has consented in writing thereto (such which consent shall not to be unreasonably withheld or delayedwithheld), the Company:
(i) shall, and shall cause each of the Company Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of the Company Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of the Company Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to Parent of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rights;
(vi) shall not, and shall not permit any of the Company Subsidiaries to, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans;
(vii) shall not, and shall not permit any of the Company Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrantsSubsidiaries, other than the issuance of Company Options consistent with past practice;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make take or pay fail to take any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stockaction which would, or to redeemwould be reasonably likely to, purchase or otherwise acquireprevent the accounting for the Merger as a pooling of interests in accordance with APB No. 16, directly or indirectlythe interpretive releases issued pursuant thereto, any and the pronouncements of its capital stockthe SEC;
(ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, the terms of any Company Employee Plans, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except as permitted by clause (vii) above or, in the case of awards not involving the acquisition of securities, in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of -26- 27 business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, hire employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments required under Company Employee Plans in effect on the date hereofPlans;
(xi) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances to any other person;
(xii) shall not, and shall not permit any of the Company Subsidiaries to, (x) make, revoke or change any material election with respect to Taxes unless required by applicable law or (y) settle or compromise any material Tax liability;
(xiii) shall not, and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which are, in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a whole;
(xiv) shall not, and shall not permit any of the Company Subsidiaries to, except for the payment of reasonable professional fees relating to the Merger or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptable, to Parent), pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xv) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure Schedule; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);
(xvii) shall not, and shall not permit any of the Company Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and
(xixxiii) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in contemplated by any other provision of this Agreement, unless the Company has consented in writing thereto (such which consent shall not to be unreasonably withheld or delayedwithheld), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(ivii) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(iii) shall not, and shall not permit any of Parent Subsidiaries to, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options to purchase shares of Parent Common Stock under Parent Stock Option Plans;
(iv) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any action which would, or would be reasonably likely to, prevent the accounting for the Merger as a pooling of interests in accordance with APB No. 16, the interpretive releases issued pursuant thereto, and the pronouncements of the SEC;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Cephalon Inc)
Interim Operations. (a) Prior Between the date hereof and the Final Closing Date, the Sellers shall operate and carry on the Business (except to the Effective Time, except extent a portion thereof has previously been transferred to Buyer or Eastern as set forth in Section 5.2 of the Company Disclosure Schedule Closing Date or as expressly provided for in this Agreement, unless Parent has consented in writing thereto (such consent not to be unreasonably withheld or delayed), the Company:
(iprior Inventory Closing Date) shall, and shall cause each of the Company Subsidiaries to, conduct its operations only in the ordinary course consistent and substantially as presently operated. Consistent with the manner as heretofore conducted;
foregoing, the Sellers shall (i) keep and maintain the Purchased Assets in good operating condition and repair, normal wear-and-tear excepted; (ii) shall use their commercially reasonable efforts, and shall cause each efforts to preserve the goodwill of the Company Subsidiaries to use commercially reasonable effortssuppliers, to preserve intact their business organizations contractors, licensors, employees, customers, distributors and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons others having business relationships relations with them;
the Business; (iii) shall not, maintain the Inventory at levels adequate and shall cause each not excessive in the present circumstances of the Company Subsidiaries not to, amend their respective Certificates Business and at levels reasonably based on past practices and historical sales of Incorporation or Bylaws or comparable governing instruments;
the Business; and (iv) maintain the Sellers’ current operating practices with respect to Patient Charges. In furtherance of the foregoing, the Sellers shall give prompt notice maintain normal operating hours, staffing levels, inventory levels and merchandise mix. For the avoidance of doubt, changes imposed or required by third parties of a kind and nature typical for a company that has announced an intent to Parent wind down its business or dissolve shall not be deemed to violate the terms of this Agreement (but may be included in any representation determination of the existence of a Material Adverse Effect).
(b) Except as expressly contemplated by this Agreement or warranty made by it contained except with the express written approval of Buyer, the Sellers shall not: (i) take any action that is intended or may reasonably be expected to result in (x) any of the representations and warranties set forth in this Agreement being or becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rights;
(vi) shall not, and shall not permit any of the Company Subsidiaries to, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans;
(vii) shall not, and shall not permit any of the Company Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrants;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, or to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except (y) any of the conditions to the Closing set forth in this Agreement not being satisfied or (z) any violation of any provision of this Agreement, except, in each case, as may be required by applicable law or in response to changes in applicable law, the terms Requirements of any Company Employee Plans, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder Law; (except in the case of awards not involving the acquisition of securities, in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice except that (Aii) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments required under Company Employee Plans in effect on the date hereof;
(xi) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incurenter into any lease, createagreement, assume Contract or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations commitment of any other individualnature, corporation oral or other entity or (y) written, nor make any loans capital investment or advances expenditures, primarily related to any other person;
(xii) shall not, and shall not permit any the ownership or operation of the Company Subsidiaries toOperate Location Pharmacies, Worksite Pharmacies or Transfer Locations; (xiii) make, revoke or change any material election with respect to Taxes unless required by applicable law or (y) settle or compromise any material Tax liability;
(xiii) shall not, and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which are, in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a whole;
(xiv) shall not, and shall not permit any of the Company Subsidiaries to, except for the payment of reasonable professional fees relating to the Merger or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptable, to Parent), pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xv) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business consistent with past practice, enter into any Contract with respect to, or as otherwise expressly contemplated herebymake any increase in (or commitment to increase) the compensation payable to any of its employees or agents primarily related to the Operate Location Pharmacies, grant Worksite Pharmacies or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure ScheduleTransfer Locations; provided (provided, that the Company foregoing shall not grant prohibit the granting of “stay-bonuses” or similar commitments) or (iv) sell, lease, transfer or otherwise dispose of (including any material -------- licenses to use transfers from any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries toSellers to any of their respective Affiliates), allow any insurance policy naming it as a beneficiary or a loss payee impose or suffer to be cancelledimposed any Encumbrance on, terminated any of the Purchased Assets, other than inventory and minor amounts of personal property sold or materially altered, except otherwise disposed of for fair value in the ordinary course of business and the Business consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);
(xvii) shall not, and shall not permit any of the Company Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and
(xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actionspractice.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in this Agreement, unless the Company has consented in writing thereto (such consent not to be unreasonably withheld or delayed), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 1 contract
Interim Operations. (a) Prior to the Effective Time, except as set ------------------ forth in Section 5.2 of the Company Disclosure Schedule Letter or as expressly provided for in contemplated by any other provision of this Agreement, unless Parent Sub has consented in writing thereto (such consent not to be unreasonably withheld or delayed)thereto, the Company:
(i) shall, and shall cause each of the Company its Subsidiaries to, conduct its operations in the and business according to their usual, regular and ordinary course consistent with the manner as heretofore conductedpast practice;
(ii) shall use commercially reasonable its best efforts, and shall cause each of the Company its Subsidiaries to use commercially reasonable its best efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of the Company its Subsidiaries not to, amend their respective Certificates Articles of Incorporation or Bylaws by-laws or comparable governing instruments;
(iv) shall give prompt notice to Parent promptly notify Sub of (x) any material change in its condition (financial or otherwise), business, prospects, properties, assets, liabilities or the normal course of its business or of its properties, (y) any material litigation or material governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), or (z) the breach of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementherein;
(v) shall notpromptly deliver to Sub correct and complete copies of any report, and shall not permit any statement or schedule filed with the SEC subsequent to the date of the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rightsthis Agreement;
(vi) shall not, and shall not permit any of the Company its Subsidiaries to, effect authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any stock split merger, consolidation or otherwise change its capitalization business combination (other than the Merger), release or issue relinquishment of any shares material contract rights, or any acquisition or disposition of its capital stock assets or securities convertible into or exchangeable or exercisable for shares in excess of its capital stock, except upon exercise $100,000 in the aggregate other than in the ordinary course of options outstanding as of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plansbusiness consistent with past practice;
(vii) shall not, and shall not permit any of the Company its Subsidiaries to, (x) grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or its Subsidiaries or (y) accelerate, amend or change the period of exercisability of options or restricted stock granted under any employee stock plan or, except as contemplated by Section 4.3(a)(i), authorize cash payments in exchange for any options granted under any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrantssuch plans;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, or to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, respect the terms of any Company Employee the Benefit Plans, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except in the case of awards not involving the acquisition of securities, in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments required under Company Employee Plans in effect on the date hereof;
(xiix) shall not, and shall not permit any of its Subsidiaries to (x) increase or agree to increase the Company compensation payable or to become payable to its officers or, other than increases in accordance with past practice which are not material, to its employees or (y) enter into any collective bargaining agreement;
(x) shall not, and shall not permit any of its Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances to any other person, except in the case of clause (x) for borrowings under existing credit facilities in the ordinary course of business and, except in the case of clause (y) for advances consistent with past practice which are not material;
(xi) shall not, and shall not permit any of its Subsidiaries to, (x) materially change any practice with respect to Taxes, (y) make, change or revoke any material Tax election, or (z) settle or compromise any material dispute involving a Tax liability;
(xii) shall not, and shall not permit any of the Company its Subsidiaries to, (x) makedeclare, revoke set aside or change pay any material election dividend or make any other distribution or payment with respect to Taxes unless required by applicable law any shares of its capital stock or other ownership interests or (y) settle directly or compromise indirectly redeem, purchase or otherwise acquire any material Tax liabilityshares of its capital stock or capital stock of any of its Subsidiaries, or make any commitment for any such action or (z) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
(xiii) shall not, and shall not permit any of the Company its Subsidiaries to, authorize issue, deliver, sell, pledge or otherwise encumber any shares of its capital expenditures which arestock, any other securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, securities or convertible securities (other than the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date hereof in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a wholeaccordance with their present terms);
(xiv) shall not, and shall not permit any of the Company its Subsidiaries to, make or agree to make any capital expenditure or expenditures with respect to property, plant or equipment which, individually or in a series of related transactions, is in excess of $100,000 or, in the aggregate, are in excess of $500,000 except for as otherwise in the payment ordinary course of reasonable professional fees relating business consistent with past practice in order to the Merger satisfy actual or otherwise expected contractual commitments to customers;
(xv) shall not, and reasonable fees to financial advisors shall not permit any of its Subsidiaries to, change any accounting principles or practices;
(which financial advisory fees have heretofore been disclosed or are otherwise acceptablexvi) shall not, to Parent)and shall not permit any of its Subsidiaries to, pay, discharge discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate), other than the paymentspayment, discharges discharge or satisfactionssatisfaction, in the ordinary course of business and consistent with past practicepractice or in accordance with their terms, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as consolidated financial statements (or the notes thereto) of a date prior to the date hereof Company included in the Company Reports or subsequently incurred thereafter in the ordinary course of business and consistent with past practice or collectpractice, or accelerate the collection waive any material benefits of, or agree to modify in any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xv) shall notmaterial respect, and shall not permit any of confidentiality, standstill, non-solicitation or similar agreement to which the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure ScheduleSubsidiary is a party; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);and
(xvii) shall not, and shall not permit any of the Company its Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetingstake, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and
agree (xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise) or resolve to take, to take any of the foregoing actions.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in this Agreement, unless the Company has consented in writing thereto (such consent not to be unreasonably withheld or delayed), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (MTL Inc)
Interim Operations. (a) Prior to the Effective Time, except as set forth in Section 5.2 of the Company EVT Disclosure Schedule or as expressly provided for in contemplated by any other provision of this Agreement, unless Parent Guidant has consented in writing thereto (such thereto, which consent shall not to be unreasonably withheld or delayed)withheld, the CompanyEVT:
(i) shall, and shall cause each of the Company its Subsidiaries to, conduct its operations in the according to their usual, regular and ordinary course consistent with in substantially the same manner as heretofore conducted;
(ii) shall use commercially its reasonable efforts, and shall cause each of the Company its Subsidiaries to use commercially its reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of the Company its Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to Parent promptly notify Guidant of (x) any material adverse change in its condition (financial or otherwise), business, properties, assets, prospects, liabilities or the normal course of its business or of its properties, (y) any litigation or governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), or (z) any material breach of any representation or warranty made by it contained herein;
(v) shall, upon receiving any written notice from any Taxing authority proposing any adjustment to any Tax relating to EVT or any of its Subsidiaries, give prompt written notice thereof to Guidant, which notice shall describe in this Agreement becoming untrue detail each proposed adjustment;
(vi) shall promptly deliver to Guidant true and correct copies of any report, statement or inaccurate in any material respect such that schedule filed with the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions SEC subsequent to the obligations date of the parties under this Agreement;
(vvii) subject to the provisions of Section 5.1, shall not, and shall not permit any of its Subsidiaries to, authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights;
(viii) shall not, and shall not permit any of the Company its Subsidiaries to, (A) acquire issue any shares of their capital stock or agree securities, except upon exercise of options outstanding on the date of this Agreement to acquire by merging or consolidating withpurchase shares of EVT Common Stock outstanding under EVT Stock Option Plans, or by acquiring effect any capital stock split or otherwise change its capitalization and except for up to 35,000 shares of or purchasing a substantial portion of EVT Common Stock to be issued pursuant to the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rightsStock Purchase Plan;
(viix) shall not, and shall not permit any of the Company Subsidiaries to, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans;
(vii) shall not, and shall not permit any of the Company Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of EVT or its Subsidiaries except for options to purchase up to 100,000 shares of EVT Common Stock granted to newly hired officers, employees and consultants in the Company or any ordinary course of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrants;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, business consistent with respect to any of its capital stock, or to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Codepast practice;
(x) shall not, and shall not permit any of its Subsidiaries to, take any action which would, or would be reasonably likely to, prevent the Company accounting for the Merger as a pooling of interests in accordance with APB No. 16, the interpretive releases issued thereto, and the pronouncements of the SEC.
(xi) shall not and shall not permit any of its Subsidiaries to, take any actions which would, or would be reasonably likely to, prevent the Merger from qualifying as a reorganization with the meaning of Section 368(a) of the Code;
(xii) shall not, and shall not permit any of its Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, the terms of any Company Employee PlansEVT Benefit Plan, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except in the case of awards not involving the acquisition of securities, in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice arrangements except that (A) the Company EVT may hire, and enter into compensation arrangements with, hire employees in the ordinary course of business consistent with past practice and (B) this subsection (xxii) shall not preclude the Company EVT from making payments required under Company Employee Plans in effect on the date hereofEVT Plans;
(xixiii) shall not, and shall not permit any of the Company its Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity except pursuant to the loan agreement existing on the date hereof between Guidant and EVT (the "Loan Agreement") or (y) make any loans or advances to any other person;
(xii) shall not, and shall not permit any except in the case of the Company Subsidiaries to, clause (x) make, revoke or change any material election with respect to Taxes unless required by applicable law or (y) settle or compromise any material Tax liability;
(xiii) shall not, and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which are, for borrowings under existing credit facilities in the aggregate, in excess ordinary course of $1 million for the Company and the Company Subsidiaries taken as a wholebusiness;
(xiv) shall not, and shall not permit any of the Company its Subsidiaries to, except for the payment of reasonable professional fees relating (x) change any practice with respect to the Merger Taxes, (y) make, revoke or otherwise and reasonable fees change any election with respect to financial advisors Taxes or (which financial advisory fees have heretofore been disclosed z) settle or are otherwise acceptable, to Parent), pay, discharge or satisfy compromise any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary coursetax liability;
(xv) shall not, and shall not permit any of the Company its Subsidiaries to, except in the ordinary course (y) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of business its capital stock or as other ownership interests or (z) directly or indirectly redeem, purchase or otherwise expressly contemplated hereby, grant or acquire any material licenses to use shares of its capital stock or capital stock of any Intellectual Property Rights of its Subsidiaries, or unpatented inventions set forth make any commitment for any such action, except for the repurchase of unvested shares from employees, consultants or directors in accordance with the Company Disclosure ScheduleEVT Plans and the agreements entered into pursuant thereto; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;and
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);
(xvii) shall not, and shall not permit any of the Company Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and
(xix) shall not, and shall not permit any of the Company its Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule actions or as expressly provided in this Agreement, unless the Company has consented in writing thereto (such consent not to be unreasonably withheld or delayed), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company of take any action which would make any representation or warranty made by it contained in this Agreement becoming Article 3 hereof untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actionsincorrect.
Appears in 1 contract
Interim Operations. (a) Prior After the date hereof and prior to the Effective Time, except as set forth in Section 5.2 Closing or earlier termination of the Company Disclosure Schedule or as expressly provided for in this Agreement, unless Parent has consented Buyer shall otherwise agree in writing thereto (such consent not to be unreasonably withheld or delayed)as otherwise contemplated by this Agreement, each of Seller and the CompanyCorporation shall ensure that:
(ia) shall, and shall cause each the business of the Company Subsidiaries to, conduct its operations Corporation shall be conducted only in the usual, regular and ordinary course consistent with in substantially the same manner as heretofore conducted;
(iib) shall use commercially reasonable efforts, there is no material change (including any change by the incorporation or acquisition or disposal of a subsidiary of all or part of a business) in the nature and shall cause each extent of the Company Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with themits business;
(iiic) the Corporation shall not, and shall cause each of the Company Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instrumentscreate any new subsidiaries;
(ivd) the Corporation shall give prompt notice not take any of the actions set forth in Section 2.26 hereof or enter into any contract, agreement, commitment or arrangement with respect to Parent any of such actions;
(e) the Corporation shall not resolve to be or convene any representation general meeting as to which a resolution is proposed that the Corporation shall be voluntarily wound-up;
(f) the Seller shall confer with one or warranty made more representatives of Buyer to report operational matters of a material nature and the general status of ongoing operations;
(g) neither the Seller nor the Corporation shall:
(i) knowingly cause any of the representations and the warranties by it the Corporation or the Seller contained in this Agreement becoming to be untrue or inaccurate incorrect in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements as of the parties or the conditions to the obligations of the parties under this AgreementClosing Date;
(vii) shall notwaive, and shall not permit grant, release or transfer any rights or property of the Company Subsidiaries to, (A) acquire material value or agree to acquire by merging modify or consolidating with, change in any material respect any Material Contract or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets Material Permit other than in the ordinary course of business business;
(iii) commit a breach of, or default under, any Material Contract or Material Permit, or any contract, agreement, license or instrument to which any of the Corporation's shares may be subject, or violate any applicable law; regulation, ordinance, order, injunction or decree or any other requirement of any governmental body or court, relating to the Corporation's shares or assets or business;
(iv) fail to (A) file all reports and returns required to be filed with the Registrar of Companies, and local and foreign authorities; (B) fail to promptly pay all Taxes lawfully levied or assessed upon it or any of its properties (except for taxes being contested for which adequate reserves have been created); or (C) release withhold or relinquish collect and pay to proper governmental authorities or agree hold in separate bank accounts for such payment all Taxes and other assessments that are required by law to release be so withheld or relinquish collected; or
(v) enter into any material contract rightscontract, agreement, commitment or arrangement with respect to any of the foregoing;
(vih) The Seller and the Corporation shall use reasonable efforts to preserve intact the business organization of the Corporation, to keep available the services of its present officers and key employees, and to preserve the good will of the Customers;
(i) The Seller and the Corporation shall not, and shall cause their officers, employees, representatives or agents not permit to, directly or indirectly:
(i) encourage, solicit, initiate or participate in discussions or negotiations with, or provide any non-public information to, any person, other than Buyer or its affiliates concerning any transaction involving acquisition of all or substantially all of the Company Subsidiaries to, effect any stock split Shares or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as the assets of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans;Corporation, or
(viiii) shall nototherwise solicit, and shall not permit any of the Company Subsidiaries torespond, grant, confer participate in or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrants;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, negotiate with respect to any of its capital stock, or to redeem, purchase or otherwise acquire, directly or indirectly, proposal contemplating any of its capital stock;such transaction.
(ixj) shall not, The Corporation and the Seller shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law action or in response to changes in applicable law, the terms of any Company Employee Plans, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except in the case of awards not involving the acquisition of securities, in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments required under Company Employee Plans in effect on the date hereof;
(xi) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances to any other person;
(xii) shall not, and shall not permit any of the Company Subsidiaries to, (x) make, revoke or change any material election with respect to Taxes unless required by applicable law or (y) settle or compromise any material Tax liability;
(xiii) shall not, and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which are, in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a whole;
(xiv) shall not, and shall not permit any of the Company Subsidiaries to, except for the payment of reasonable professional fees relating to the Merger or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptable, to Parent), pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xv) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure Schedule; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);
(xvii) shall not, and shall not permit any of the Company Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and
(xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
(b) Prior to actions or any action that could be reasonably foreseen at the Effective Time, except as set forth in Section 5.2 time of the Parent Disclosure Schedule or as expressly provided in this Agreement, unless the Company has consented in writing thereto (taking of such consent not action to be unreasonably withheld or delayed), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company of any representation or warranty made by it contained Seller or the Corporation in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements incorrect as of the parties date hereof or at the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the CodeClosing Date; and
(vik) shall not, and The Corporation shall not permit pay, loan or advance any amount to, or sell, transfer or lease any of Parent Subsidiaries its properties or assets to, agreeor enter into any agreement or arrangement with, in writing or otherwise, to take any of the foregoing actionsits officers or directors, except for its customary directors' fees and compensation to officers.
Appears in 1 contract
Sources: Share Purchase Agreement (Ambi Inc)
Interim Operations. (a) Prior to the Effective Time, except as may be set forth in Section 5.2 of the Company Acquisition Corp. Disclosure Schedule Letter or as expressly provided for described in any other provision of this Agreement, unless Parent Artra has consented in writing thereto (such consent not to be unreasonably withheld or delayed)thereto, the Company:
WWWX: (i) shall, and shall cause the Acquisition Corp. and each of the Company its Subsidiaries toto conduct their respective operations according to their usual, conduct its operations in the regular and ordinary course consistent with the manner as heretofore conducted;
course; (ii) shall use commercially its reasonable efforts, and shall cause the Acquisition Corp. and each of the Company its Subsidiaries to use commercially its reasonable efforts, to preserve intact their assets and business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
; (iii) shall not, and shall cause each of not amend the Company Subsidiaries not to, amend their respective Certificates Articles of Incorporation or Bylaws or comparable governing instruments;
instruments of the Acquisition Corp. or any of its Subsidiaries; (iv) shall give prompt notice to Parent promptly notify Artra of any material breach of any representation or warranty made by it contained in this Agreement becoming untrue herein or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfiedWWWX Material Adverse Effect; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall notpromptly deliver to Artra true and correct copies of all monthly financial statements of WWWX, the Acquisition Corp. and shall not permit any each of its Subsidiaries promptly after the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock end of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rights;
each month; (vi) shall not, and shall not permit the Acquisition Corp. or any of the Company its Subsidiaries toto (x) issue any shares of its capital stock, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of it existed on the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans;
hereof, (viiy) shall not, and shall not permit any of the Company Subsidiaries to, grant, confer or award any optionsoption, warrantswarrant, conversion rights right or other rights, not existing on the date hereof, right to acquire any shares of its capital stock or grant, confer or award any bonuses or other securities forms of cash incentives to any officer, director or key employee except consistent with past practice or (z) increase any compensation under any employment agreement with any of its present or future officers, directors or employees, except for normal increases consistent with past practice, grant any severance or termination pay to, or enter into any employment or severance agreement with any officer or director or amend any such agreement in any material respect, adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend any existing employee benefit plan in any material respect; (vii) shall not permit the Company Acquisition Corp. or any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrants;
its Subsidiaries, to (viiix) shall not, and shall not permit any of the Company Subsidiaries todeclare, set aside, make aside or pay any dividend or make any other distribution, payable in cash, stock, property distribution or otherwise, payment with respect to any shares of its the Acquisition Corp.'s capital stock, stock or to other ownership interests or (y) directly or indirectly redeem, purchase or otherwise acquire, directly acquire any shares of its capital stock or indirectly, capital stock of any of its Subsidiaries, or make any commitment for any such action; (viii) shall not permit the Acquisition Corp. or any of its Subsidiaries to, sell, lease or otherwise dispose of any of its assets (including capital stock;
stock of Subsidiaries) except in the ordinary course of business, or to acquire any business or assets; (ix) shall not, and shall not permit the Acquisition Corp. or any of the Company its Subsidiaries to incur any material amount of indebtedness for borrowed money or make any loans, advances or capital contributions to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, the terms of any Company Employee Plans, including, without limitationinvestments in, any employment, severance or similar agreements or arrangements in existence on other person other than pursuant to the date hereofLoan Agreement, or adopt issue or sell any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except in the case of awards not involving the acquisition of debt securities, other than borrowings under existing lines of credit in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection business; (x) shall not preclude permit the Company from making payments required under Company Employee Plans Acquisition Corp. or any of its Subsidiaries to, authorize or make capital expenditures except as described in effect on the date hereof;
Loan Agreement; (xi) shall not, and shall not permit the Acquisition Corp. or any of the Company its Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume to mortgage or otherwise become liable for borrowed money encumber or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances subject to any other person;
lien any of their properties or assets except as would not be reasonably likely to have an Acquisition Corp. Material Adverse Effect; (xii) shall not, and shall not permit the Acquisition Corp. or any of the Company its Subsidiaries to, make any change to its accounting (xincluding tax accounting) makemethods, revoke principles or change any material election with respect to Taxes unless practices, except as may be required by applicable law or (y) settle or compromise any material Tax liability;
(xiii) shall not, generally accepted accounting principles and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which areexcept, in the aggregatecase of tax accounting methods, in excess of $1 million for the Company and the Company Subsidiaries taken as a whole;
(xiv) shall not, and shall not permit any of the Company Subsidiaries to, except for the payment of reasonable professional fees relating to the Merger principles or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptable, to Parent), pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactionspractices, in the ordinary course of business of the Acquisition Corp. or any of its Subsidiaries; and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivablexiii) other than collection in the ordinary course;
(xv) shall not, and shall not permit the Acquisition Corp. or any of the Company its Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure Schedule; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);
(xvii) shall not, and shall not permit any of the Company Subsidiaries to, enter into any hedgingjoint venture, option, derivative production or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent marketing arrangements without consulting with applicable law or regulation; and
(xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actionsArtra prior thereto.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Artra Disclosure Schedule Letter or as expressly provided described in this Agreement, unless the Company WWWX has consented in writing thereto (such consent not to be unreasonably withheld or delayed)thereto, ParentArtra:
(i) shall, and shall cause each not issue any shares of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
capital stock (other than pursuant to any Artra Stock Option Plans) or effect any stock split of its capital stock; (ii) shall use commercially reasonable efforts, and shall cause each promptly notify the Acquisition Corp. of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company any breach of any representation or warranty made by it contained in this Agreement becoming untrue herein or inaccurate in any material respect such that Artra Material Adverse Effect; and (iii) shall promptly deliver to WWWX true and correct copies of any report, statement or schedule filed with the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions SEC subsequent to the obligations date of the parties under this Agreement;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 1 contract
Interim Operations. (a) Prior to During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective TimeTime of the Merger (the "INTERIM PERIOD"), except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly provided for in this AgreementSchedules, and unless Parent iManage has consented in advance in writing thereto (such consent not to be unreasonably withheld or delayed)thereto, the CompanyTHOUGHTSTAR:
(i) shall, and shall cause each of the Company Subsidiaries to, Shall conduct its operations in the according to its usual, regular and ordinary course consistent with in substantially the same manner as heretofore conducted; provided that in so conducting its operations THOUGHTSTAR shall consult with iManage (through Shams Rashid, Vice President Business Development or other person designated by iManage) no less than weekly as to such operations and shall not take action or allocate resources in a manner objected to by iManage;
(ii) To the extent consistent with its business, shall use commercially reasonable efforts, and shall cause each of the Company Subsidiaries to use commercially reasonable efforts, efforts to preserve intact their its business organizations organization and goodwill, keep available the services of their respective officers its officers, employees and employees contractors and maintain satisfactory relationships with those persons having business relationships with themit;
(iii) shall notShall promptly notify iManage of any Material Adverse Effect, and shall cause each any material litigation or material governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), or the material breach of the Company Subsidiaries not to, amend their respective Certificates of Incorporation any representation or Bylaws or comparable governing instrumentswarranty contained herein;
(iv) shall give prompt notice to Parent of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would Shall not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of the Company Subsidiaries to, (A), except as contemplated by Sections 2.7(b) acquire or agree to acquire by merging or consolidating withand 2.8(b), or by acquiring issue any shares of its capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rights;
(vi) shall not, and shall not permit any of the Company Subsidiaries tostock, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of it existed on the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans;
hereof; (viiB) shall not, and shall not permit any of the Company Subsidiaries to, grant, confer or award any optionsoption, warrantswarrant, conversion rights right or other rights, right not existing on the date hereof, hereof to acquire any shares of its capital stock stock; (C) increase any compensation, make payment of cash bonuses to, or other securities of the Company or any of the Company Subsidiaries enter into or amend or otherwise modify any outstanding options or warrants;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, employment agreement with respect to any of its capital stockpresent or future officers, directors, employees or contractors except for normal increases consistent with past practice; (D) grant any severance or termination package to redeemany employee, contractor or consultant; or (E) adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase or otherwise acquireplan) or, directly or indirectly, any of its capital stock;
(ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying except as a reorganization within the meaning of contemplated by Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to5.8, amend any existing employee benefit plan in any material respect;
(v) Shall not enter into any agreement or transaction, except as required by applicable law or in response agree to changes in applicable law, the terms of enter into any Company Employee Plansagreement or transaction, including, without limitation, any employmenttransaction involving a merger, severance consolidation, joint venture, license agreement partial or similar agreements complete liquidation or arrangements in existence on dissolution, reorganization, recapitalization, restructuring or a purchase, sale, lease or other disposition of a material portion of assets or capital stock;
(vi) With the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except in the case exception of awards not involving the acquisition of securities, licenses entered into in the ordinary course of business consistent with past practice)business, shall not, without prior notice to iManage, transfer to any person or entity any rights to the Intellectual Property Rights;
(vii) Shall not violate in any material respect, amend, or grant any salary increases to any employee otherwise change the terms of the Company or any of the Company Subsidiaries except contracts set forth in the ordinary course of business consistent with past practice except that Disclosure Schedules;
(viii) Shall not commence a lawsuit other than for: (A) the Company may hire, routine collection of bills (other than against customers or vendors of iManage and enter into compensation arrangements with, employees in the ordinary course its Subsidiaries of business consistent with past practice and which iManage or its counsel have received notice); (B) this subsection (x) shall not preclude the Company from making payments required under Company Employee Plans in effect injunctive relief on the date hereof;
(xi) shall not, grounds that THOUGHTSTAR has suffered immediate and shall irreparable harm not permit any of the Company Subsidiaries to, except compensable in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances to any other person;
(xii) shall not, and shall not permit any of the Company Subsidiaries to, (x) make, revoke or change any material election with respect to Taxes unless required by applicable law or (y) settle or compromise any material Tax liability;
(xiii) shall not, and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which are, in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a whole;
(xiv) shall not, and shall not permit any of the Company Subsidiaries to, except for the payment of reasonable professional fees relating to the Merger or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptable, to Parent), pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xv) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure Schedule; damages provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without THOUGHTSTAR has obtained the prior written consent of ParentiManage, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);
(xvii) shall not, and shall not permit any of the Company Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and
(xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in this Agreement, unless the Company has consented in writing thereto (such consent not to be unreasonably withheld withheld; or delayed), Parent:
(iC) shall, and shall cause each breach of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(vix) shall not, and shall Shall not permit any of Parent Subsidiaries to, take or fail to take any actions other action which would could reasonably be reasonably likely expected to prevent the Merger from qualifying as cause a reorganization within the meaning of Section 368(a) of the Code major customer or supplier or key employee or contractor to terminate its relationship with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.THOUGHTSTAR;
Appears in 1 contract
Interim Operations. (a) Prior to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly provided for in contemplated by any other provision of this Agreement, unless Parent has consented in writing thereto (such which consent shall not to be unreasonably withheld or delayedwithheld), the Company:
(i) shall, and shall cause each of the Company Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of the Company Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of the Company Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to Parent of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rights;
(vi) shall not, and shall not permit any of the Company Subsidiaries to, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans;
(vii) shall not, and shall not permit any of the Company Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrantsSubsidiaries, other than the issuance of Company Options consistent with past practice;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make take or pay fail to take any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stockaction which would, or to redeemwould be reasonably likely to, purchase or otherwise acquireprevent the accounting for the Merger as a pooling of interests in accordance with APB No. 16, directly or indirectlythe interpretive releases issued pursuant thereto, any and the pronouncements of its capital stockthe SEC;
(ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, the terms of any Company Employee Plans, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except as permitted by clause (vii) above or, in the case of awards not involving the acquisition of securities, in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, hire employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments required under Company Employee Plans in effect on the date hereofPlans;
(xi) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances to any other person;
(xii) shall not, and shall not permit any of the Company Subsidiaries to, (x) make, revoke or change any material election with respect to Taxes unless required by applicable law or (y) settle or compromise any material Tax liability;
(xiii) shall not, and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which are, in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a whole;
(xiv) shall not, and shall not permit any of the Company Subsidiaries to, except for the payment of reasonable professional fees relating to the Merger or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptable, to Parent), pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xv) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure Schedule; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);
(xvii) shall not, and shall not permit any of the Company Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and
(xixxiii) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in contemplated by any other provision of this Agreement, unless the Company has consented in writing thereto (such which consent shall not to be unreasonably withheld or delayedwithheld), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(ivii) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(iii) shall not, and shall not permit any of Parent Subsidiaries to, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options to purchase shares of Parent Common Stock under Parent Stock Option Plans;
(iv) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any action which would, or would be reasonably likely to, prevent the accounting for the Merger as a pooling of interests in accordance with APB No. 16, the interpretive releases issued pursuant thereto, and the pronouncements of the SEC;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Cephalon Inc)
Interim Operations. (a) Prior to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule Letter or as expressly provided for in contemplated by any other provision of this Agreement, unless Parent Sub has consented in writing thereto (such consent not to be unreasonably withheld or delayed)thereto, the Company:
(i) shall, and shall cause each of the Company its Subsidiaries to, conduct its operations in the and business according to their usual, regular and ordinary course consistent with the manner as heretofore conductedpast practice;
(ii) shall use commercially reasonable its best efforts, and shall cause each of the Company its Subsidiaries to use commercially reasonable its best efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of the Company its Subsidiaries not to, amend their respective Certificates Articles of Incorporation or Bylaws by-laws or comparable governing instruments;
(iv) shall give prompt notice to Parent promptly notify Sub of (x) any material change in its condition (financial or otherwise), business, prospects, properties, assets, liabilities or the normal course of its business or of its properties, (y) any material litigation or material governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), or (z) the breach of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementherein;
(v) shall notpromptly deliver to Sub correct and complete copies of any report, and shall not permit any statement or schedule filed with the SEC subsequent to the date of the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rightsthis Agreement;
(vi) shall not, and shall not permit any of the Company its Subsidiaries to, effect authorize, propose or announce an intention to authorize or propose, or enter into an agreement with respect to, any stock split merger, consolidation or otherwise change its capitalization business combination (other than the Merger), release or issue relinquishment of any shares material contract rights, or any acquisition or disposition of its capital stock assets or securities convertible into or exchangeable or exercisable for shares in excess of its capital stock, except upon exercise $100,000 in the aggregate other than in the ordinary course of options outstanding as of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plansbusiness consistent with past practice;
(vii) shall not, and shall not permit any of the Company its Subsidiaries to, (x) grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or its Subsidiaries or (y) accelerate, amend or change the period of exercisability of options or restricted stock granted under any employee stock plan or, except as contemplated by Section 4.3(a)(i), authorize cash payments in exchange for any options granted under any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrantssuch plans;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, or to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, respect the terms of any Company Employee the Benefit Plans, including, without limitation, any employment, severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except in the case of awards not involving the acquisition of securities, in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments required under Company Employee Plans in effect on the date hereof;
(xiix) shall not, and shall not permit any of its Subsidiaries to (x) increase or agree to increase the Company compensation payable or to become payable to its officers or, other than increases in accordance with past practice which are not material, to its employees or (y) enter into any collective bargaining agreement;
(x) shall not, and shall not permit any of its Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances to any other person, except in the case of clause (x) for borrowings under existing credit facilities in the ordinary course of business and, except in the case of clause (y) for advances consistent with past practice which are not material;
(xi) shall not, and shall not permit any of its Subsidiaries to, (x) materially change any practice with respect to Taxes, (y) make, change or revoke any material Tax election, or (z) settle or compromise any material dispute involving a Tax liability;
(xii) shall not, and shall not permit any of the Company its Subsidiaries to, (x) makedeclare, revoke set aside or change pay any material election dividend or make any other distribution or payment with respect to Taxes unless required by applicable law any shares of its capital stock or other ownership interests or (y) settle directly or compromise indirectly redeem, purchase or otherwise acquire any material Tax liabilityshares of its capital stock or capital stock of any of its Subsidiaries, or make any commitment for any such action or (z) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
(xiii) shall not, and shall not permit any of the Company its Subsidiaries to, authorize issue, deliver, sell, pledge or otherwise encumber any shares of its capital expenditures which arestock, any other securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, securities or convertible securities (other than the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date hereof in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a wholeaccordance with their present terms);
(xiv) shall not, and shall not permit any of the Company its Subsidiaries to, make or agree to make any capital expenditure or expenditures with respect to property, plant or equipment which, individually or in a series of related transactions, is in excess of $100,000 or, in the aggregate, are in excess of $500,000 except for as otherwise in the payment ordinary course of reasonable professional fees relating business consistent with past practice in order to the Merger satisfy actual or otherwise expected contractual commitments to customers;
(xv) shall not, and reasonable fees to financial advisors shall not permit any of its Subsidiaries to, change any accounting principles or practices;
(which financial advisory fees have heretofore been disclosed or are otherwise acceptablexvi) shall not, to Parent)and shall not permit any of its Subsidiaries to, pay, discharge discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate), other than the paymentspayment, discharges discharge or satisfactionssatisfaction, in the ordinary course of business and consistent with past practicepractice or in accordance with their terms, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as consolidated financial statements (or the notes thereto) of a date prior to the date hereof Company included in the Company Reports or subsequently incurred thereafter in the ordinary course of business and consistent with past practice or collectpractice, or accelerate the collection waive any material benefits of, or agree to modify in any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xv) shall notmaterial respect, and shall not permit any of confidentiality, standstill, non-solicitation or similar agreement to which the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure ScheduleSubsidiary is a party; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);and
(xvii) shall not, and shall not permit any of the Company its Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetingstake, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and
agree (xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise) or resolve to take, to take any of the foregoing actions.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in this Agreement, unless the Company has consented in writing thereto (such consent not to be unreasonably withheld or delayed), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (MTL Inc)
Interim Operations. (a) Prior to the Effective Time, except as may be set forth in Section 5.2 of the Company Acquisition Corp. Disclosure Schedule Letter or as expressly provided for described in any other provision of this Agreement, unless Parent Artra has consented in writing thereto (such consent not to be unreasonably withheld or delayed)thereto, the Company:
WWWX: (i) shall, and shall cause the Acquisition Corp. and each of the Company its Subsidiaries toto conduct their respective operations according to their usual, conduct its operations in the regular and ordinary course consistent with the manner as heretofore conducted;
course; (ii) shall use commercially its reasonable efforts, and shall cause the Acquisition Corp. and each of the Company its Subsidiaries to use commercially its reasonable efforts, to preserve intact their assets and business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
; (iii) shall not, and shall cause each of not amend the Company Subsidiaries not to, amend their respective Certificates Articles of Incorporation or Bylaws or comparable governing instruments;
instruments of the Acquisi tion Corp. or any of its Subsidiaries; (iv) shall give prompt notice to Parent promptly notify Artra of any material breach of any representation or warranty made by it contained in this Agreement becoming untrue herein or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfiedWWWX Material Adverse Effect; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall notpromptly deliver to Artra true and correct copies of all monthly financial statements of WWWX, the Acquisition Corp. and shall not permit any each of its Subsidiaries promptly after the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock end of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rights;
each month; (vi) shall not, and shall not permit the Acquisition Corp. or any of the Company its Subsidiaries toto (x) issue any shares of its capital stock, effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of it existed on the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans;
hereof, (viiy) shall not, and shall not permit any of the Company Subsidiaries to, grant, confer or award any optionsoption, warrantswarrant, conversion rights right or other rights, not existing on the date hereof, right to acquire any shares of its capital stock or grant, confer or award any bonuses or other securities forms of cash incentives to any officer, director or key employee except consistent with past practice or (z) increase any compensation under any employment agreement with any of its present or future officers, directors or employees, except for normal increases consistent with past practice, grant any severance or termination pay to, or enter into any employment or severance agreement with any officer or director or amend any such agreement in any material respect, adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend any existing employee benefit plan in any material respect; (vii) shall not permit the Company Acquisition Corp. or any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrants;
its Subsidiaries, to (viiix) shall not, and shall not permit any of the Company Subsidiaries todeclare, set aside, make aside or pay any dividend or make any other distribution, payable in cash, stock, property distribution or otherwise, payment with respect to any shares of its the Acquisition Corp.'s capital stock, stock or to other ownership interests or (y) directly or indirectly redeem, purchase or otherwise acquire, directly acquire any shares of its capital stock or indirectly, capital stock of any of its Subsidiar ies, or make any commitment for any such action; (viii) shall not permit the Acquisition Corp. or any of its Subsidiaries to, sell, lease or otherwise dispose of any of its assets (including capital stock;
stock of Subsidiaries) except in the ordinary course of business, or to acquire any business or assets; (ix) shall not, and shall not permit the Acquisition Corp. or any of the Company its Subsidiaries to incur any material amount of indebtedness for borrowed money or make any loans, advances or capital contributions to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, the terms of any Company Employee Plans, including, without limitationinvestments in, any employment, severance or similar agreements or arrangements in existence on other person other than pursuant to the date hereofLoan Agreement, or adopt issue or sell any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except in the case of awards not involving the acquisition of debt securities, other than borrowings under existing lines of credit in the ordinary course of business consistent with past practice), or grant any salary increases to any employee of the Company or any of the Company Subsidiaries except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection business; (x) shall not preclude permit the Company from making payments required under Company Employee Plans Acquisition Corp. or any of its Subsidiaries to, authorize or make capital expenditures except as described in effect on the date hereof;
Loan Agreement; (xi) shall not, and shall not permit the Acquisition Corp. or any of the Company its Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume to mortgage or otherwise become liable for borrowed money encumber or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances subject to any other person;
lien any of their properties or assets except as would not be reasonably likely to have an Acquisition Corp. Material Adverse Effect; (xii) shall not, and shall not permit the Acquisition Corp. or any of the Company its Subsidiaries to, make any change to its accounting (xincluding tax accounting) makemethods, revoke principles or change any material election with respect to Taxes unless practices, except as may be required by applicable law or (y) settle or compromise any material Tax liability;
(xiii) shall not, generally accepted accounting principles and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which areexcept, in the aggregatecase of tax accounting methods, in excess of $1 million for the Company and the Company Subsidiaries taken as a whole;
(xiv) shall not, and shall not permit any of the Company Subsidiaries to, except for the payment of reasonable professional fees relating to the Merger principles or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptable, to Parent), pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactionspractices, in the ordinary course of business of the Acquisition Corp. or any of its Subsidiaries; and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivablexiii) other than collection in the ordinary course;
(xv) shall not, and shall not permit the Acquisition Corp. or any of the Company its Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure Schedule; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);
(xvii) shall not, and shall not permit any of the Company Subsidiaries to, enter into any hedgingjoint venture, option, derivative production or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent marketing arrangements without consulting with applicable law or regulation; and
(xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actionsArtra prior thereto.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Artra Disclosure Schedule Letter or as expressly provided described in this Agreement, unless the Company WWWX has consented in writing thereto (such consent not to be unreasonably withheld or delayed)thereto, ParentArtra:
(i) shall, and shall cause each not issue any shares of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
capital stock (other than pursuant to any Artra Stock Option Plans) or effect any stock split of its capital stock; (ii) shall use commercially reasonable efforts, and shall cause each promptly notify the Acquisition Corp. of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company any breach of any representation or warranty made by it contained in this Agreement becoming untrue herein or inaccurate in any material respect such that Artra Material Adverse Effect; and (iii) shall promptly deliver to WWWX true and correct copies of any report, statement or schedule filed with the condition set forth in Section 6.2(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions SEC subsequent to the obligations date of the parties under this Agreement;
(v) shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall not, and shall not permit any of Parent Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
Appears in 1 contract
Sources: Merger Agreement (Artra Group Inc)
Interim Operations. (a) Prior to the Effective TimeSeller covenants and agrees that, except (i) as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly provided for in contemplated by this Agreement; (ii) as required by Law; (iii) as disclosed in the Disclosure Schedule; or (iv) with the prior written consent of Purchaser, unless Parent has consented in writing thereto (such consent not to be unreasonably withheld or delayed)withheld, after the Companydate hereof and prior to the Closing Date:
(ia) shall, and Seller shall cause each of the Company Subsidiaries to, conduct its operations in the ordinary course use reasonable efforts consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of the Company Subsidiaries to use commercially reasonable efforts, Seller's past practices to preserve the Business intact their business organizations in all material respects and goodwill, keep available generally conduct the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of the Company Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to Parent of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect such that the condition set forth in Section 6.3(a)(ii) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement;
(v) shall not, and shall not permit any of the Company Subsidiaries to, (A) acquire or agree to acquire by merging or consolidating with, or by acquiring any capital stock of or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or (B) acquire or agree to acquire assets other than Business in the ordinary course of business or (C) release or relinquish or agree to release or relinquish any material contract rightsthe Business consistent with past practice;
(vib) shall not, and Seller shall not permit any of the Company Subsidiaries tosell, effect any stock split lease or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of the date hereof to purchase shares of Company Common Stock under the Company Stock Option Plans;
(vii) shall not, and shall not permit any of the Company Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock or other securities of the Company or any of the Company Subsidiaries or amend or otherwise modify any outstanding options or warrants;
(viii) shall not, and shall not permit any of the Company Subsidiaries to, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock, or to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(ix) shall not, and shall not permit any of the Company Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code;
(x) shall not, and shall not permit any of the Company Subsidiaries to, amend in any material respect, except as required by applicable law or in response to changes in applicable law, the terms dispose of any Company Employee Plans, including, without limitation, any employment, severance assets or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any employment, severance or similar agreements or arrangements, or grant any award thereunder (except properties included in the case of awards not involving the acquisition of securities, Purchased Assets (other than Inventory in the ordinary course of business consistent with past practicepractices);
(c) Seller shall not, with respect to the Business, do any act or omit to do any act whereby any Transferred Intellectual Property may lapse, become abandoned, dedicated to the public, or unenforceable, or enter into any material commitment, transaction, contract or agreement concerning the Transferred Intellectual Property;
(d) Seller shall not grant any bonus, salary increases increase, severance or termination pay to, or otherwise increase the compensation or benefits of, any employees of the Business, except obligations pursuant to any employee of existing Plans;
(e) Seller shall not, with respect to the Company or Business, change in any material respect any of the Company Subsidiaries accounting principles, methods or practices used by it (except in the ordinary course of business consistent with past practice except that (A) the Company may hire, and enter into compensation arrangements with, employees in the ordinary course of business consistent with past practice and (B) this subsection (x) shall not preclude the Company from making payments as required under Company Employee Plans in effect on the date hereofby GAAP);
(xif) Seller shall not, and with respect to the Business, modify, amend or terminate, or waive, release or assign any material rights or claims with respect to, any Contract;
(g) Seller shall not permit any of the Company Subsidiaries to, except in the ordinary course of business consistent with past practice, (x) incur, create, assume or otherwise Purchased Assets to become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of any other individual, corporation or other entity or (y) make any loans or advances subjected to any Encumbrance other personthan the Permitted Encumbrances;
(xiih) Seller shall not, and shall not permit any of the Company Subsidiaries to, (x) make, revoke or change any material election with respect to Taxes unless the Business, enter into any lease or sublease of real property (whether as a lessor, sublessor, lessee or sublessee) other than the Real Property Lease or modify, amend, terminate or fail to exercise any right to renew the Real Property Lease;
(i) Seller shall not, with respect to the Business, commit to make as of a date subsequent to the Closing any capital expenditure which individually is in excess of $100,000, except capital expenditures reasonably required in the event of exigent circumstances or which are funded by insurance or other third parties;
(j) Except for the persons listed on Schedule 4.1(j), with respect to the Business, Seller shall not hire any new employee with an annual base salary in excess of $75,000, promote any employee except in order to fill a position vacated after the date of this Agreement, or engage any consultant or independent contractor pursuant to a binding commitment that is non-terminable without the payment of fees in excess of a minimum of $75,000;
(k) Seller shall not, with respect to the Business, adopt, enter into, or amend any Plan, except (i) as required pursuant to contractual arrangements in effect as of the date hereof or as required or permitted under this Agreement, (ii) as required by applicable law or (yiii) settle as may apply to any employee other than employees or compromise any material Tax liabilityformer employees of the Business;
(xiiil) Seller shall not, and shall not permit any of the Company Subsidiaries to, authorize capital expenditures which are, in the aggregate, in excess of $1 million for the Company and the Company Subsidiaries taken as a whole;
(xiv) shall not, and shall not permit any of the Company Subsidiaries to, except for the payment of reasonable professional fees relating with respect to the Merger or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptableBusiness, to Parent), pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $1 million in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Company's most recent audited balance sheet as of a date prior to the date hereof or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other than collection in the ordinary course;
(xv) shall not, and shall not permit any of the Company Subsidiaries to, except in the ordinary course of business or as otherwise expressly contemplated hereby, grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the Company Disclosure Schedule; provided that the Company shall not grant any material -------- licenses to use any material Intellectual Property Rights or unpatented inventions so set forth without the prior written consent of Parent, which consent shall not be unreasonably withheld;
(xvi) shall not, and shall not permit of the Company Subsidiaries to, allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Parent (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);
(xvii) shall not, and shall not permit any of the Company Subsidiaries to, enter into any hedging, option, derivative or other similar transaction;
(xviii) shall notify Parent a reasonable time in advance of, and shall permit a representative of Parent to review or participate in, any communications, meetings, or correspondence between the Company or any Company Subsidiary and the FDA, the European Agency for the Evaluation of Medical Products or similar regulatory agency and in any of the Company's internal planning meetings that cover substantive issues relating to Evacet(TM), except, in each case, as may be inconsistent with applicable law or regulation; and
(xix) shall not, and shall not permit any of the Company Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
(b) Prior to the Effective Time, except as set forth in Section 5.2 of the Parent Disclosure Schedule or as expressly provided in this Agreement, unless the Company has consented in writing thereto (such consent not to be unreasonably withheld or delayed), Parent:
(i) shall, and shall cause each of the Parent Subsidiaries to, conduct its operations in the ordinary course consistent with the manner as heretofore conducted;
(ii) shall use commercially reasonable efforts, and shall cause each of Parent Subsidiaries to use commercially reasonable efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them;
(iii) shall not, and shall cause each of Parent Subsidiaries not to, amend their respective Certificates of Incorporation or Bylaws or comparable governing instruments;
(iv) shall give prompt notice to the Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate change in any material respect such that the condition set forth in Section 6.2(a)(ii) would not be satisfied; providedany of its co-op advertising policies, howeverproduct return policies, that no such notification shall affect the representationsproduct maintenance policies, warrantiesservice policies, covenants product modification or agreements of the parties upgrade policies, or the conditions to the obligations of the parties under this Agreementpersonnel policies;
(vm) Seller shall not, and shall not permit any of Parent Subsidiaries to, take or fail to take any actions which would be reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code with respect to which gain recognition is not required under Section 367(a) of the Code; and
(vi) shall notBusiness, and shall not permit any of Parent Subsidiaries to, agree, in writing authorize or otherwise, enter into an agreement to take do any of the foregoing actionsforegoing. Notwithstanding the provisions of this Section 4.1, nothing in this Agreement shall prevent Seller from engaging in any activity with respect to any of its businesses other than the Business.
Appears in 1 contract