Prior to Closing. During the period beginning on the Effective Date and ending on the (x) expiration of the Call Period if Monsanto Canada does not exercise the Call Option or (y) Closing if Monsanto Canada exercises the Call Option, and without limiting the covenants set forth in Section 2 with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following: (i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement; (ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity; (iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company; (iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness; (v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests; (vi) increase the authorized number of any class or series of units, equity interests or other interests; (vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend; (viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate; (ix) engage in any business other than the Company Business; (x) enter into any transaction or agreement with any third party; (xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board; (xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company; (xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice; (xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP; (xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies; (1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons; (xvii) amend the Company’s organizational documents; (xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business; (xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction; (xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests; (xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time; (xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement; (xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or (xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d).
Appears in 1 contract
Prior to Closing. During the period beginning on the Effective Date and ending on the (xa) expiration The assignment of the Call Period FCC Licenses in connection with the purchase and sale of the Purchased Assets pursuant to this Agreement shall be subject to the prior consent and approval of the FCC.
(b) Each Seller and Buyer shall promptly prepare an appropriate application for the FCC Consent pertaining to the FCC Licenses held by such Seller (collectively, the "FCC Applications") and shall file the FCC Applications with the FCC within seven (7) Business Days of the execution of this Agreement. The cost of the FCC filing fees in connection with the FCC 20 Applications shall be borne Fifty Percent (50%) by the Sellers and Fifty Percent (50%) by the Buyer, which such FCC filings fees are not to exceed $4,500 in the aggregate irrespective of whether the transactions contemplated by this Agreement are consummated. Buyer and Seller shall be individually responsible for their respective attorney's fees in connection with the FCC Applications. Buyer and Seller shall prosecute the FCC Applications with all reasonable diligence and otherwise use their commercially reasonable best efforts to obtain the applicable FCC Consent as expeditiously as practicable and shall oppose any objections to the grant of such FCC Consent. Each party hereto agrees to comply with any condition imposed on it by the FCC Consent provided that such conditions of the FCC Consent are similar in all material respects as approved by each Seller's board of directors on June 21, 2017. except that no party shall be required to comply with a condition if Monsanto Canada (i) the condition was imposed on it as the result of a circumstance the existence of which does not exercise constitute a breach by the Call Option party of any of its representations, warranties, or covenants under this Agreement and (yii) compliance with the condition would have a material adverse effect upon it. The parties hereto shall oppose any requests for reconsideration or judicial review of the FCC Consent; provided that if the request for reconsideration or review or other challenge to the grant of such FCC Consent addresses Buyer’s characteristics or conduct, or that of its principals, Buyer shall be responsible for the costs of defending the FCC Applications and if the request for reconsideration or review or other challenge to the grant of such FCC Consent addresses a Seller's characteristics or conduct, or that of its principals, such Seller shall be responsible for the costs of defending the FCC Applications. If the Closing if Monsanto Canada exercises shall not have occurred for any reason within the Call Optionoriginal effective period of the applicable FCC Consent, and without limiting no party shall have terminated this Agreement under Section 10, the covenants set forth in parties shall jointly request an extension of the effective period of such FCC Consent. No extension of such FCC Consent shall limit the exercise by either party of its rights under Section 2 10. Buyer and each Seller shall each oppose any petition to deny or other objection filed with respect to the conduct of applicable FCC Consent to the Research Program, without the approval of the Board, including the approval of the Representatives in extent such petition or objection relates to such party. Neither any event, the Company Seller nor Buyer shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly dotake any intentional action, or propose intentionally fail to dotake any action, which would reasonably be expected to materially delay the receipt of such FCC Consent.
7.2. The risk of any loss, damage, impairment, confiscation, condemnation or revocation of any of the following:Purchased Assets from any cause whatsoever shall be borne by the Seller that owns such Purchased Assets at all times prior to the Closing.
(i) waive compliance 7.3. Except as necessary for the consummation of the transactions contemplated by Protiva this Agreement and except as and to the extent required by law, including, without limitation, disclosure requirements of federal or state securities laws and the rules and regulations of securities markets, each party will keep confidential any information obtained from the other party in connection with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as transactions contemplated by this Agreement. If this Agreement is terminated, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose each party will return to the issuance of any units, equity interests or other interests, or create, or authorize party all information obtained by such party from the creation of any additional class or series of units, equity interests or other interests;
(vi) increase party in connection with the authorized number of any class or series of units, equity interests or other interests;
(vii) except as transactions contemplated by this Agreement, distribute any of the Company’s material assets .
7.4. Buyer and each Seller shall cooperate fully with each other and their respective counsel and accountants in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement connection with any Affiliate;
(ix) engage in actions required to be taken as part of their respective obligations under this Agreement, and Buyer and each Seller shall execute such other documents as may be reasonably necessary and desirable to the implementation and consummation of this Agreement, and otherwise use their commercially reasonable best efforts to consummate the transaction contemplated hereby and to fulfill their obligations under this Agreement. Notwithstanding the foregoing, neither any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit Seller nor Buyer shall have an obligation to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any materially adverse change in any method License or Assumed Contract to obtain a Consent required with respect thereto.
7.5. From the date of financial accounting this Agreement until the Closing Date, each Seller will afford Buyer, its officers, counsel, accountants and other representatives, upon two (2) business days prior written notice, full access to the Purchased Assets and Stations owned by such Seller and all of such Seller’s contracts, commitments and other records related to such Purchased Assets, at all reasonable times during business hours, and such representatives will be furnished true and complete copies of the same as such representatives may reasonably request; provided, however, that such review shall be conducted so as to not interfere unreasonably with or financial accounting practice used by disrupt the Company, other than business and broadcast operations of such changes as are required by GAAP;Seller.
(xv) except 7.6. From the date hereof until the earlier to occur of the Closing Date or the termination of this Agreement in accordance with generally accepted accounting principles in CanadaArticle 10, consistently applied, make each Seller shall promptly notify the Buyer of:
(a) any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable notice or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire communication from any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses Governmental Authority in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable connection with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiiib) enter into(i) the occurrence or non-occurrence of any event which has caused any representation or warranty made by it herein to be untrue or inaccurate in any material respect at any time on or after the date hereof and prior to the Closing and (ii) any material failure on the part of such Seller to comply with or satisfy any covenant, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract condition or agreement to take or cause set forth herein to be taken complied with or satisfied by such Seller hereunder on or after the date hereof and prior to the Closing; and
7.7. All Transfer Taxes arising out of or in connection with the transactions effected pursuant to this Agreement shall be borne by the applicable Seller. The party which has the primary responsibility under applicable Law for the payment of any particular Transfer Tax shall prepare the relevant Tax Return. If Buyer is required to pay any Transfer Tax, the applicable Seller shall pay to Buyer the amount of such Transfer Taxes by check or wire transfer of immediately available funds no later than the date that is the later of (i) five (5) Business Days after the date Buyer notifies such Seller of the actions prohibited amount of Transfer Taxes required to be paid by Buyer or (ii) two (2) Business Days prior to the due date for such Transfer Taxes. The applicable Seller and Buyer shall cooperate in the preparation, execution and filing of all Transfer Tax Returns and shall cooperate in seeking to secure any available exemptions from such Transfer Taxes.
7.8. The applicable Seller shall be liable for payment of and shall prepare and properly file on a timely basis true, complete and accurate Tax Returns and other documentation for any and all Taxes incurred with respect to the Purchased Assets owned by such Seller and the operation of such Purchased Assets for any Pre-Closing Tax Period, and Buyer shall be liable for payment of and shall prepare and properly file on a timely basis true, complete and accurate Tax Returns and other documentation for any and all Taxes incurred with respect to such Purchased Assets and the operation of such Purchased Assets for any Post-Closing Tax Period. Buyer shall prepare and properly file, consistent with past practice, all Tax Returns for any taxable period beginning on or before and ending after the Closing Date (a “Straddle Period”). Notwithstanding anything to the contrary in this Section 7(d)7.8, all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Purchased Assets for any Straddle Period shall be apportioned between the applicable Seller, on the one hand, and Buyer, on the other hand, based on the number of days of such period up to and including the Closing Date and the number of days of such period after the Closing Date, and such Seller shall be liable for the proportionate amount of such Taxes that is attributable to the portion of the Straddle Period up to the Closing Date, and Buyer shall be liable for the proportionate amount of such Taxes that is attributable to the portion of the Straddle Period beginning after the Closing Date. Other Taxes, if any, shall be allocated between the applicable Seller and the Buyer based on a closing of the books on the Closing Date.
Appears in 1 contract
Prior to Closing. During Until the period beginning on Closing and pursuant to the Effective Date terms and ending on the (x) expiration conditions of the Call Period if Monsanto Canada does not exercise Confidentiality Agreement executed by Seller and Buyer as of January 4, 2008 (“the Call Option or (y) Closing if Monsanto Canada exercises CA”), the Call OptionSeller will furnish the Buyer and its employees, officers, accountants, attorneys, agents, investment bankers and other authorized representatives with all books, records, financial information, contracts, and without limiting other data and information concerning the covenants set forth Business, commitments, personnel and properties and facilities of the Seller as the Buyer shall from time to time reasonably request and will afford the Buyer and its employees, officers, accountants, attorneys, agents, investment bankers and other authorized representatives reasonable access during normal business hours to the Seller’s offices, properties, books, records, financial information, contracts and documents (including Tax Returns filed and those in Section 2 preparation) and will be given the opportunity to ask questions of, and receive answers from, representatives of the Seller with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any eventBusiness, the Company shall use commercially reasonable efforts to: (A) operate Transferred Assets and the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company Seller (whether tangible “the Inspection”). The Inspection shall not include the Facilities and the inspection of the Facilities shall be conducted as set out in the leases for the Facilities. All investigation on Seller's property or intangiblewith employees of Seller must be conducted in the presence of a Shareholder (each Shareholder shall use their good faith efforts to be available as requested by Buyer) or with a Shareholder's prior approval (not to be unreasonably withheld, delayed, denied or conditioned). No investigations by the capital stock Buyer or its employees, representatives or agents shall reduce or otherwise affect the obligation or liability of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable Seller with respect to any debt representations, warranties, covenants or agreements made herein or in any Exhibit, Schedule or other than on terms that allow for prepayment at any time;
(xxii) commencecertificate, settleinstrument, agreement or offer or propose to settledocument, any (1) material actionincluding the Disclosure Schedule, or (2) action that relates to the transactions contemplated by executed and delivered in connection with this Agreement;
(xxiii) enter into. The Seller will cooperate with the Buyer and its employees, or allow officers, accountants, attorneys, agents and other authorized representatives in the preparation of any Affiliate to enter into any agreement, license documents or other similar arrangement materials that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, may be required by any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d)Governmental Entity.
Appears in 1 contract
Prior to Closing. During Seller and Buyer covenant and agree not to communicate the period beginning on terms or any aspect of this Agreement and the Effective Date transactions contemplated hereby to any person or entity and ending on to hold, in the strictest confidence, the content of all information regarding the Project made available to Buyer by Seller or Seller’s agents or representatives, or any Confidential Information (xas defined in Section 6.1) expiration of the Call Period if Monsanto Canada that is supplied by Seller to Buyer or by Buyer to Seller and which is not or does not exercise the Call Option or (y) Closing if Monsanto Canada exercises the Call Option, and without limiting the covenants set forth in Section 2 with respect to the conduct of the Research Programbecome publicly available, without the approval express written consent of the Boardother party; provided, including however, that either party may disclose the approval terms hereof and the transactions contemplated hereby (a) to its respective advisors, consultants, investors, mortgage broker, attorneys, accountants and lenders, all actual or prospective (the “Transaction Parties”) without the express written consent of the Representatives in other party, so long as any event, the Company such Transaction Parties to whom disclosure is made shall use commercially reasonable efforts to: (A) operate the Company Business also agree to keep all such information confidential in accordance with the Research Planterms hereof and (b) if disclosure is required by law or by regulatory or judicial process, provided that in such event Seller or Buyer, as applicable, shall notify the other party in writing of such required disclosure, shall exercise all commercially reasonable efforts to preserve the confidentiality of the confidential documents or information, as the case may be, including, without limitation, reasonably cooperating with the other party to obtain an appropriate order or other reliable assurance that confidential treatment will be accorded such confidential documents or information, as the case may be, by such tribunal and shall disclose only that portion of the confidential documents or information which it is legally required to disclose. Notwithstanding anything in this Section 12.2 to the contrary, Buyer and its counsel, attorneys and advisors shall be entitled to disclose any of the foregoing information (i) to the extent required by applicable law, including, without limitation, the rules and regulations of the U.S. Securities and Exchange Commission (“SEC”), or any stock exchange applicable to Buyer and its affiliates, (Bii) preserve intact to the business organization extent Buyer’s counsel, attorneys or advisors determines appropriate, in any prospectus, report or other filing made by Buyer or its affiliates with the SEC or any stock exchange to which Buyer or any affiliate is subject, or (iii) in any press release in connection with a disclosure under items (i) or (ii) above; provided, however, under no circumstances shall Buyer disclose to any third party, other than the Transaction Parties, the identity of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services AgreementSeller. In addition, during such period the Company Seller shall not contact or conduct negotiations with public officials regarding this Agreement or the transactions contemplated hereby without the express written consent of Buyer, which may be withheld in Buyer’s sole discretion. The foregoing confidentiality obligations shall not apply to the extent that any such information is a matter of public record or is provided in other sources readily available to the real estate industry other than as a result of disclosure by Seller or Buyer, as applicable, or the Transaction Parties. Buyer and Protiva Seller shall cause consult with each other in good faith prior to making any public statements with respect to this Agreement and the Company transactions contemplated hereby and, except as otherwise may be required pursuant to notapplicable law, Buyer and Seller shall not make any public statements, including, without limitation, any press releases, with respect to this Agreement and the transactions contemplated hereby which identifies the other party, without the prior written consent of Monsanto Canadathe other party, directly or indirectly dowhich consent shall not be unreasonably withheld. Buyer and Seller each hereby indemnify the other against, or propose to doand hold the other harmless from, any and all claims, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees and disbursements) arising in connection with their respective obligations under this Section 12.2. Upon Closing, the above confidentiality restrictions shall be void and of no further force and effect, provided, however, that subsequent to Closing, neither Seller nor Buyer may use the following:
(i) waive compliance by Protiva with other’s name in any disclosure without such other party’s consent, not to be unreasonably withheld. If this Agreement is terminated for any reason, the PadCo-Protiva License provisions of this Section 12.2 shall survive the termination of this Agreement for a period of one year, and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporationSeller, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for Buyer and the Transaction AgreementsParties will use all commercially reasonable efforts to destroy, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business upon request, all documents and other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sellmaterials, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets and all copies thereof, except acquisitions of inventory and supplies obtained thereby in the ordinary course of business consistent connection with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than this Agreement that are subject to such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d)confidence.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Parkway Properties Inc)
Prior to Closing. During Except as arising from the period beginning on the Effective Date and ending on the (x) expiration of the Call Period if Monsanto Canada does not exercise the Call Option LMA or (y) Closing if Monsanto Canada exercises the Call Optionas expressly permitted by this Agreement, and without limiting the covenants set forth in Section 2 or with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto CanadaBuyer, directly which consent shall not be unreasonably withheld, conditioned or indirectly dodelayed, or propose to do, any of the followingSeller shall:
(i) waive compliance by Protiva with maintain the PadCo-Protiva License FCC Licenses in full force and Services Agreement or the Protiva-Monsanto Services Agreementeffect;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of operate the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies Station in the ordinary course of business consistent with past practice, and in all material respects in accordance with the FCC Licenses, the Communications Act, the FCC Rules, and all other applicable Laws;
(iii) not adversely modify any of the FCC Licenses;
(iv) cause all Liens on the Station Assets, other than Permitted Liens, to be released in full at or prior to Closing;
(v) provide Buyer with any financial or other information regarding the Station maintained by Seller and requested by Buyer that is reasonably necessary to satisfy Buyer’s lenders;
(vi) not, other than in the ordinary course of business and consistent with past practice, terminate, rescind, or waive any rights under any Station Contracts, and shall not be in material default under any Station Contract;
(vii) not, other than in the ordinary course of business and consistent with past practice, enter into any new contracts or agreements in connection with the operation of the Station that would be assumed by Buyer at Closing or amend any Station Contract in any material respect;
(viii) notify Buyer promptly (A) if the Station is off the air for a continuous period of six (6) hours or more or (B) if the Station’s normal broadcast transmissions are materially impaired for a continuous period of more than twelve (12) hours;
(ix) maintain the Tangible Personal Property in normal operating condition consistent with Seller’s past practices, ordinary wear and tear excepted;
(x) maintain the Station’s inventories of spare parts and supplies in the ordinary course and at levels consistent with past practices;
(xi) not sell, lease or dispose of or agree to sell, lease or dispose of any of the Station Assets, except (A) the ordinary course disposition of items that either are obsolete or unnecessary for the continued operation of the Station as currently operated or are replaced by assets of comparable or superior utility or (B) pursuant to Station Contracts listed on Schedule 1.1(c);
(xii) make all capital expenditures with respect to the Station in the ordinary course in accordance with past practices;
(xiii) not, other than in de minimis amounts, enter into, or extend or renew, any trade or barter agreements, or other agreements for the sale of advertising time other than for cash consideration, nor make any material change in the customary advertising load of the Station;
(xiv) make notify Buyer of the expiration of, or exercisable renewal options arising under, any change in any method Station Contracts, and exercise such renewal options if reasonably necessary for the continued operation of financial accounting or financial accounting practice used by the Company, other than such changes Station as are required by GAAP;currently conducted; and
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change use its commercially reasonable efforts to (1) the Company’s normal month have existing trade and barter agreements concluded prior to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d)Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Communications Corp)
Prior to Closing. During Between the period beginning on date of this Agreement and the Effective Date and ending on the (x) expiration of the Call Period if Monsanto Canada does not exercise the Call Option Closing Date, except as expressly permitted by this Agreement, or (y) Closing if Monsanto Canada exercises the Call Option, and without limiting the covenants set forth in Section 2 with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto CanadaBuyer, directly which consent shall not be unreasonably conditioned, withheld or indirectly dodelayed and which shall be deemed given if Buyer does not respond to Seller’s request within five Business Days of receipt thereof, or propose to do, any of the followingSeller shall:
(i) waive compliance by Protiva with maintain the PadCo-Protiva License FCC Licenses in full force and Services Agreement or the Protiva-Monsanto Services Agreementeffect;
(ii) own any stock or other securities of any subsidiary or other corporationoperate the Stations in all material respects in accordance with the FCC Licenses, partnershipthe Communications Act, or other entitythe FCC rules and regulations and all applicable Laws;
(iii) create not adversely modify any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the CompanyFCC Licenses, except as may be provided in any pending application identified on Schedule 2.7(b);
(iv) except as approved by use commercially reasonable efforts to cause all Liens on the Board or as contemplated by this AgreementStation Assets, incur any Indebtedness or guaranteeother than Permitted Liens, directly or indirectly, any Indebtednessto be released in full prior to Closing;
(v) issue, transfer, deliver, sell, authorize, pledge use commercially reasonable efforts to provide Buyer with any financial information regarding the Stations as is maintained by Seller on a basis not consolidated with other stations and requested by Buyer that is reasonably necessary to satisfy any reporting obligations to the Securities and Exchange Commission or otherwise encumber or propose reasonably necessary to obtain acquisition financing for the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interestsStations;
(vi) increase not, other than in the authorized number ordinary course of business and consistent with past practice, terminate, rescind, or waive any class or series of units, equity interests or other interestsrights under any Station Contracts;
(vii) except as contemplated by this Agreement, distribute not enter into any new contracts or agreements in connection with the operation of the Company’s material assets Stations (or amend any existing Station Contract) (i) other than in the form ordinary course and consistent with past practice and (ii) provided that any such new contracts or amendments that are binding after the Closing, except for those contracts or agreements entered into pursuant to Section 4.2(a)(viii), Section 4.2(a)(xix) or Section 4.5(b), shall require post-Closing payments by Buyer of a dividendless than $250,000 (in the aggregate under such new contracts or amendments);
(viii) except with respect to Station Employees, not (A) grant raises other than raises that would be given in the ordinary course of business consistent with past practice in connection with the October 1st focal point review, (B) pay substantial bonuses other than (x) stay bonuses or enhanced severance for which the Transaction AgreementsBuyer has no liability or (y) bonuses contemplated under existing employee arrangements, (C) enter into any transaction new employment agreements that are not terminable at will or agreement with (D) agree to do any Affiliateof the foregoing;
(ix) engage in any business other than repair the Company Businessitems and complete the capital projects set forth on Schedule 4.2;
(x) enter into any transaction notify Buyer promptly (A) if a Station is off the air for a continuous period of 12 hours or agreement with any third partymore or (B) if a Station’s normal broadcast transmissions are materially impaired for a continuous period of more than 24 hours;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of operate the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies Stations in the ordinary course of business consistent with past practice;
(xii) use commercially reasonable efforts to preserve the business and goodwill of the Stations and the Station Assets;
(xiii) not change the programming formats of any of the Stations;
(xiv) make any change adhere in any method all material respects to the Stations’ current practices, a summary of financial accounting or financial accounting practice used by which has been delivered to Buyer, with respect to the Company, other than such changes as are required by GAAPamount of airtime available to broadcast commercials on the Stations;
(xv) maintain the Tangible Personal Property and the Real Property in normal operating condition consistent with Seller’s past practices, ordinary wear and tear excepted;
(xvi) maintain the Stations’ inventories of spare parts and supplies in the ordinary course and at levels consistent with past practices;
(xvii) not sell, lease or dispose of or agree to sell, lease or dispose of any of the Station Assets, except (A) the ordinary course disposition of items that either are obsolete or unnecessary for the continued operation of the Stations as currently operated or are replaced by assets of comparable or superior utility or (B) pursuant to existing contracts or commitments listed on Schedule 1.1(c), if any, or agree to do any of the foregoing;
(xviii) make all capital expenditures with respect to the Stations in the ordinary course in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policiespast practices, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;capital projects set forth on Schedule 4.2; and
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6xix) make any loans expenditures on market research and promotional activities with respect to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses Stations in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend accordance with the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d)past practices.
Appears in 1 contract
Sources: Asset Purchase Agreement (Entercom Communications Corp)
Prior to Closing. During Sellers shall cause the period beginning on the Effective Date Target to (i) give Buyer and ending on the (x) expiration its authorized representatives reasonable access to all books, records, personnel, offices and other facilities and properties of the Call Period if Monsanto Canada does not exercise Target, (ii) permit Buyer to make such copies and inspections thereof as Buyer may reasonably request and (iii) cause the Call Option or (y) Closing if Monsanto Canada exercises officers of the Call Option, Target to furnish Buyer with such financial and without limiting the covenants set forth in Section 2 operating data and other information with respect to the conduct business and properties of the Research ProgramTarget as Buyer may from time to time reasonably request; provided, without however, that any such access shall be conducted at Buyer's expense, at a reasonable time, under the approval supervision of the Board, including Target's personnel and in such a manner as to maintain the approval confidentiality of this Agreement and the transactions contemplated hereby and not to interfere with the normal operation of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the CompanyTarget. Notwithstanding anything contained in this or any other agreement between Buyer and the Target executed prior to the date hereof, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during nothing herein shall require either any Seller or Target to disclose any information to Buyer if such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
disclosure would (i) waive compliance by Protiva with the PadCojeopardize any attorney-Protiva License and Services Agreement client or the Protiva-Monsanto Services Agreement;
other legal privilege, or (ii) own contravene any stock applicable laws, fiduciary duty or other securities binding agreement entered into prior to the date of this Agreement (including any subsidiary or other corporationconfidentiality agreement to which any Seller, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License Target or any of Protiva’s rights their respective Affiliates is a party) and, in each such case, Target gives Buyer notice of such non-disclosure. The provisions of the Confidentiality Agreement shall remain binding and in full force and effect until the Closing. The information contained herein, in the capital stock Disclosure Schedule or delivered to Buyer or its authorized representatives pursuant hereto shall be subject to the Confidentiality Agreement (as "Confidential Information" (as defined, and subject to the exceptions contained, therein)) until the Closing and, for that purpose and to that extent, the terms of the Company;
Confidentiality Agreement are incorporated herein by reference. Buyer and Sellers shall cause their consultants, advisors and representatives to treat the terms of this Agreement after the date hereof as strictly confidential (xiii) acquire (unless compelled to disclose by mergerjudicial or administrative process or, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course opinion of business consistent with past practice;
(xiv) make any change in any method legal counsel, by other requirements of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(dlaw).
Appears in 1 contract
Prior to Closing. During Prior to the period beginning on Closing, Seller will furnish the Effective Date Buyer and ending on its employees, officers, accountants, attorneys, agents, investment bankers and other authorized representatives with all financial, operating and other data and information concerning the (x) expiration Business, commitments and properties of the Call Period if Monsanto Canada does not exercise Seller as the Call Option or Buyer shall from time to time reasonably request and will afford the Buyer and its employees, officers, accountants, attorneys, agents, investment bankers and other authorized representatives reasonable access to the Seller’s offices, properties, books, records, contracts and documents (yincluding Tax Returns filed and those in preparation) Closing if Monsanto Canada exercises and will be given the Call Optionopportunity to ask questions of, and without limiting receive answers from, representatives of the covenants set forth in Section 2 Seller with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any eventBusiness, the Company shall use commercially reasonable efforts to: (A) operate Contracts and Other Agreements, the Company Business in accordance with Transferred Assets and the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible Seller. Notwithstanding the foregoing, Seller shall not be required to disclose any information if such disclosure would contravene any applicable law. No investigations by the Buyer or intangible) its employees, representatives or agents shall reduce or otherwise affect the capital stock obligation or liability of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable Seller with respect to any debt representations, warranties, covenants or agreements made herein or in any Exhibit, Schedule or other than certificate, instrument, agreement or document, including the Disclosure Schedule, executed and delivered in connection with this Agreement. Public Information . Until the Closing or termination hereof, the Buyer and the Seller will consult in advance on terms that allow for prepayment at any time;
(xxii) commencethe necessity for, settle, or offer or propose to settleand the timing and content of, any (1) material action, communications to be made to the public and to the form and content of any application or (2) action report to be made to any Governmental Entity that relates to the transactions contemplated by this Agreement;
Agreement and, except with respect to public announcements or disclosures in response to legal requirements (xxiii) enter intoincluding, without limitation, requirements under the Federal securities laws in connection with any registration, sale or allow purchase of securities), all such public announcements and disclosures shall require the consent of the Buyer and the Seller, which consent shall not be unreasonably withheld, delayed, denied or conditioned. Each of the Buyer, the Seller, DCCI and the Shareholders agrees that the terms of this Agreement shall not be disclosed or otherwise made available to the public and that copies of this Agreement shall not be publicly filed or otherwise made available to the public, except where such disclosure, availability or filing is required by applicable law and only to the extent required by such law. The Seller will reasonably cooperate with the Buyer and its employees, officers, accountants, attorneys, agents and other authorized representatives in the preparation of any Affiliate to enter into any agreement, license documents or other similar arrangement materials that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, may be required by any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d)Governmental Entity.
Appears in 1 contract
Prior to Closing. During Between the period beginning on date of this Agreement and the Effective Date and ending on Closing Date, except as expressly permitted by this Agreement or the (x) expiration of the Call Period if Monsanto Canada does not exercise the Call Option Local Marketing Agreement, or (y) Closing if Monsanto Canada exercises the Call Option, and without limiting the covenants set forth in Section 2 with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto CanadaBuyer, directly which consent shall not be unreasonably conditioned, withheld or indirectly dodelayed and which shall be deemed given if Buyer does not respond to Seller’s request within five Business Days of receipt thereof, or propose to do, any of the followingSeller shall:
(i) waive compliance by Protiva with maintain the PadCo-Protiva License FCC Licenses in full force and Services Agreement or the Protiva-Monsanto Services Agreementeffect;
(ii) own any stock or other securities of any subsidiary or other corporationoperate the Stations in all material respects in accordance with the FCC Licenses, partnershipthe Communications Act, or other entitythe FCC rules and regulations and all applicable Laws;
(iii) create not adversely modify any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the CompanyFCC Licenses, except as may be provided in any pending application identified on Schedule 2.7(b);
(iv) except as approved by use commercially reasonable efforts to cause all Liens on the Board or as contemplated by this AgreementStation Assets, incur any Indebtedness or guaranteeother than Permitted Liens, directly or indirectly, any Indebtednessto be released in full prior to Closing;
(v) issue, transfer, deliver, sell, authorize, pledge use commercially reasonable efforts to provide Buyer with any financial information regarding the Stations as is maintained by Seller on a basis not consolidated with other stations and requested by Buyer that is reasonably necessary to satisfy any reporting obligations to the Securities and Exchange Commission or otherwise encumber or propose reasonably necessary to obtain acquisition financing for the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interestsStations;
(vi) increase not, other than in the authorized number ordinary course of business and consistent with past practice, terminate, rescind, or waive any class or series of units, equity interests or other interestsrights under any Station Contracts;
(vii) except as contemplated by this Agreement, distribute not enter into any new contracts or agreements in connection with the operation of the Company’s material assets Stations (or amend any existing Station Contract) (i) other than in the form ordinary course and consistent with past practice and (ii) provided that any such new contracts or amendments that are binding after the Closing, except for those contracts or agreements entered into pursuant to Section 4.2(a)(viii), Section 4.2(b)(x) or Section 4.5(b), shall require post-Closing payments by Buyer of a dividendless than $100,000 per market (in the aggregate under such new contracts or amendments);
(viii) except for the Transaction Agreementswith respect to Station Employees, enter into any transaction or agreement with any Affiliate;
not (ixA) engage in any business grant raises other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies raises that would be given in the ordinary course of business consistent with past practice;
practice in connection with the October 1st focal point review, (xivB) make any change in any method of financial accounting or financial accounting practice used by the Company, pay substantial bonuses other than such changes as are required by GAAP;
(xvx) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) stay bonuses or enhanced severance for which the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company Buyer has no liability or (2y) the application of such policies;
(1) hire any employeebonuses contemplated under existing employee arrangements, (2C) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, new employment agreements that are not terminable at will or (6D) make any loans agree to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken do any of the actions prohibited by this Section 7(d)foregoing; and
(ix) repair the items and complete the capital projects set forth on Schedule 4.2.
Appears in 1 contract
Sources: Asset Purchase Agreement (Entercom Communications Corp)
Prior to Closing. During Until the period beginning on Closing, Seller (i) will operate its business in the Effective Date and ending on the (x) expiration of the Call Period if Monsanto Canada does not exercise the Call Option or (y) Closing if Monsanto Canada exercises the Call Option, and without limiting the covenants set forth in Section 2 with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Planordinary course, (Bii) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to will not, without the prior written consent of Monsanto CanadaBuyer, directly or indirectly dowhich consent shall not be unreasonably withheld, commit to any operation, or propose series of related operations other than ordinary operating activities, reasonably anticipated by Seller to do, any require expenditures by the owner of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities Assets in excess of any subsidiary or other corporation, partnership$50,000, or other entity;
terminate, materially amend, execute or extend any material agreements affecting the Assets, (iii) create any encumbrance will maintain insurance coverage on any material assets or properties the Assets presently furnished by nonaffiliated third parties in the amounts and of the Company (whether tangible or intangible) or the capital stock of the Company;
types presently in force, (iv) except as approved by the Board or as contemplated by this Agreementwill use commercially reasonable efforts to maintain in full force and effect all Leases, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issuewill maintain all material governmental permits and approvals affecting the Assets, (vi) will not transfer, deliverfarmout, sell, authorizehypothecate, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, Assets except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any for sales and dispositions of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory oil and supplies gas production and Equipment made in the ordinary course of business consistent with past practice;
practices and (xivvii) make will not commit to do any change in of the foregoing. Buyer’s approval of any method of financial accounting or financial accounting practice used action restricted by this Section 7.2 shall be considered granted within ten (10) days (unless a shorter time is reasonably required by the Companycircumstances and such shorter time is specified in Seller’s written notice) of Seller’s written notice to Buyer requesting such consent unless Buyer notifies Seller to the contrary in writing during that period. In the event of an emergency, Seller may take such action as a prudent operator would take and shall notify Buyer of such action promptly thereafter. In the event Seller makes expenditures in excess of $ 25,000 other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivablethis Section 7.2, the payment of accounts payable or other similar Liabilities of Purchase Price shall be reduced by the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment amount of any bonusand all such expenditures, profit sharingirrespective of amount. Seller will provide daily reports to buyer showing total lease gauged production volumes, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf individual well tests and immediately notify buyer of any of such Persons;
(xvii) amend the Company▇▇▇▇▇ that cease to produce. With buyer’s organizational documents;
(xviii) make approval, Seller will use best efforts to return any loans, advances or capital contributions to, or investments in, any other Person, other than advances ▇▇▇▇▇ that cease to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except produce to producing status as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d)soon as possible.
Appears in 1 contract
Sources: Purchase and Sale Agreement (BreitBurn Energy Partners L.P.)
Prior to Closing. During the period beginning on the Effective Date and ending on the (x) expiration of the Call Period if Monsanto Canada does not exercise the Call Option or (y) Closing if Monsanto Canada exercises the Call Option, and without limiting the covenants set forth in Section 2 with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(xvi) (1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d).
Appears in 1 contract
Prior to Closing. During Buyer shall have fully examined and inspected the period beginning Property and shall have become thoroughly familiar with the condition, status and usability of the same. Buyer is willing to and shall accept the Property "AS IS, WHERE IS" "WITH ALL FAULTS" on the Effective Date and ending on the (x) expiration date of the Call Period if Monsanto Canada does not exercise Closing, subject only to the Call Option or (y) Closing if Monsanto Canada exercises express representations and warranties made by Seller in this Agreement and/or in the Call Optionclosing documents, and without limiting the covenants set forth except for such express representations and warranties (which shall survive Closing as provided in Section 2 with respect to the conduct of the Research Programthis Agreement), without the approval Buyer does hereby waive and release Seller, Seller's agents, employees, officers, directors and stockholders of the Boardand from any and all claims, including the approval demands, liabilities and obligations of the Representatives in any eventwhatsoever kind of nature, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relationsdirect or indirect, and whether contingent, conditional or otherwise, known or unknown, arising under, pursuant to, from or by reason of or in connection with, any and all federal, state and local laws (D) comply with including but not limited to decisional law), statutes, ordinances, rules, regulations, permits, or standards and all Environmental Laws (all of the material covenants set forth in foregoing being herein referred to collectively as "Applicable Laws"). EXCEPT FOR SUCH REPRESENTATIONS AND WARRANTIES, SELLER HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES TO BUYER WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE CONDITION OR COMPLIANCE OF THE PROPERTY WITH RESPECT TO ANY LAWS GOVERNING ENVIRONMENTAL PROTECTION, POLLUTION CONTROL OR LAND USE OR OTHERWISE CONCERNING THE PROPERTY OR THE FITNESS, MERCHANTABILITY, USE OR CONDITION OF THE PROPERTY OR ANY MATTERS RELATED TO THE SUBJECT TRANSACTION OR THE PROPERTY. This section shall expressly survive the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d)Closing.
Appears in 1 contract
Prior to Closing. During 6.1 From and after the period beginning on date hereof, CBI or IBI, as the Effective Date case may be, will provide to the officers and ending on the (x) expiration accredited representatives of the Call Period if Monsanto Canada does other, their (including subsidiaries') books and records at such times as either shall reasonably request in order that CBI or IBI, as the case may be, may have full opportunity to make such investigation as either shall desire to make of the business and affairs of the other and its subsidiaries, provided that such investigation shall not exercise unduly interfere with the Call Option or (y) Closing if Monsanto Canada exercises normal conduct by the Call Optionother and its subsidiaries of their business. CBI and IBI, and without limiting as the covenants set forth in Section 2 with respect case may be, shall each furnish to the conduct of other such information about its business and affairs as the Research Program, without other may reasonably request in order to consummate the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers transactions herein contemplated. All non-public materials and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved information furnished by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory parties hereto shall be held strictly confidential and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice may not be used by the Companyreceiving party for their own benefit whatsoever if the closing contemplated hereunder does not occur. In such event, other than any party receiving such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices non-public materials and policies, including those relating information shall return such materials and information to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities party providing such materials and information. The obligations of the Company or (2) parties pursuant to the application preceding sentence shall survive any termination of such policies;this Agreement for any reason whatsoever.
(1) hire any employee6.2 CBI and IBI will use their respective best efforts and cooperate with each other in promptly obtaining all government, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision regulatory and shareholder consents and approvals necessary for the payment consummation of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement and the Merger Agreement;. CBI and IBI shall cooperate with each other and shall promptly furnish and make available to each other any and all information, data and facts which may be required to obtain all government, regulatory and shareholder consents and approvals and to comply with all rules in obtaining IBI's shareholders consent to the Merger.
(xxiii) enter into6.3 No party hereto shall take or fail to take, or allow any Affiliate to enter into any agreement, license cause or other similar arrangement that restricts the Company’s performance of permit its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement subsidiaries to take or cause fail to take, or to the best of its ability permit to be taken or omitted to be taken by any third persons, any action that would substantially impair the prospects of completing the Merger pursuant to this Agreement and the Merger Agreement, that would materially delay such completion, or that would adversely affect the qualification of the Merger for pooling of interests accounting treatment or as a reorganization within the meaning of Section 368(a) of the Code; provided that nothing herein contained shall preclude CBI from exercising its rights under the Option Agreement.
6.4 CBI and IBI shall agree with each other as to the form and substance of any press release related to the Merger and shall consult each other as to the form and substance of other public disclosures related thereto, provided, however, that nothing contained herein shall prohibit any party, following notification to the other, from making any disclosure which is required by applicable law or the rules of the NYSE or NASDAQ.
6.5 IBI shall not authorize or permit any of its officers, directors, employees or agents to directly or indirectly solicit, initiate or encourage any inquiries relating to, or the actions prohibited by this Section 7(dmaking of any proposal which constitutes, a "takeover proposal" (as defined below)., or recommend or endorse any takeover proposal, or participate in any discussions or negotiations, or provide third parties with any non-public information, relating to any such inquiry or proposal or otherwise facilitate any effort or attempt to make or implement a takeover proposal except to the extent legally required for the discharge of the fiduciary duties of its Board of Directors; provided, however, that IBI may communicate information about any such takeover proposal to its stockholders if, in
Appears in 1 contract
Prior to Closing. During the period beginning commencing on the Effective Date date hereof and ending on the Closing, Company shall, and shall cause its officers, employees, agents and advisors (xwho shall not include attorneys) expiration to, furnish to Buyer, its officers, employees (including without limitation internal auditors), agents and advisors, at reasonable times and, upon reasonable notice, (i) such access to the Facility as Buyer may from time to time reasonably request with due regard to minimizing disruption of the Call Period if Monsanto Canada does Business, including, but not exercise limited to, for the Call Option purposes of an environmental investigation; (ii) such access to the properties, books, records, contracts and other documents of Company relating to the Purchased Assets or the Business as Buyer may from time to time reasonably request, at such places in the United States as Company shall deem appropriate but subject to Buyer's reasonable approval, including without limitation the right to inspect, examine and audit all documents; provided, however, that such right shall not include the right to photocopy documents other than those where such photocopying is reasonably necessary to enable Buyer to effectively analyze the information contained therein, in which case photocopying will be allowed subject to control procedures consistent with those in effect between the parties prior to the date hereof; and (yiii) Closing if Monsanto Canada exercises the Call Option, such access to financial and without limiting the covenants set forth in Section 2 operating data and other information with respect to the conduct Business and the properties of the Research ProgramBusiness, without as Buyer may from time to time reasonably request, at such places in the approval of the BoardUnited States as Company shall deem appropriate but subject to Buyer's reasonable approval, including without limitation the approval of right to inspect, examine and audit all documents; provided, however, that such right shall not include the Representatives right to photocopy documents other than those where such photocopying is reasonably necessary to enable Buyer to effectively analyze the information contained therein, in any eventwhich case photocopying will be allowed subject to control procedures consistent with those in effect between the parties prior to the date hereof. Notwithstanding the foregoing, the (A) Company shall have no obligation to make available any information that, in the reasonable opinion of Company's legal counsel, would result in a violation of any law, rule or regulation applicable to Company and (B) as to any books, records, contracts, other documents or data of Company relating to the Purchased Assets or the Business that includes Other Information (other than in a nominal or inconsequential manner), Company shall not be obligated to make Other Information available, but Company shall (1) to the extent practicable, redact (physically, electronically or otherwise) the Other Information or (2) use commercially reasonable efforts to: (A) operate to prepare and present the Company Business information Buyer requests in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and any other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreementreasonable manner such that Other Information is not made available to Buyer. In additionFurther, during such period period, with the prior consent of Company in each instance (which consent shall not be unreasonably withheld), Buyer and Protiva its officers, employees, agents, independent accountants and advisors shall cause have access to the vendors identified on Schedule 4.19.(b), the customers identified on Schedule 4.19.(a), officers and employees of Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets involved in the form of a dividend;
(viii) except Business and others having business dealings with Company for the Transaction Agreements, enter into any transaction purpose of performing Buyer's due diligence investigation. Company may be represented at such meetings or agreement with any Affiliate;
(ix) engage in any business conversations by its legal counsel or such other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except representatives as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d)it may reasonably request.
Appears in 1 contract
Prior to Closing. During 6.1 From and after the period beginning on date hereof, CBI or IBI, as the Effective Date case may be, will provide to the officers and ending on the (x) expiration accredited representatives of the Call Period if Monsanto Canada does other, their (including subsidiaries') books and records at such times as either shall reasonably request in order that CBI or IBI, as the case may be, may have full opportunity to make such investigation as either shall desire to make of the business and affairs of the other and its subsidiaries, provided that such investigation shall not exercise unduly interfere with the Call Option or (y) Closing if Monsanto Canada exercises normal conduct by the Call Optionother and its subsidiaries of their business. CBI and IBI, and without limiting as the covenants set forth in Section 2 with respect case may be, shall each furnish to the conduct of other such information about its business and affairs as the Research Program, without other may reasonably request in order to consummate the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers transactions herein contemplated. All non-public materials and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved information furnished by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory parties hereto shall be held strictly confidential and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice may not be used by the Companyreceiving party for their own benefit whatsoever if the closing contemplated hereunder does not occur. In such event, other than any party receiving such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices non-public materials and policies, including those relating information shall return such materials and information to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities party providing such materials and information. The obligations of the Company or (2) parties pursuant to the application preceding sentence shall survive any termination of such policies;this Agreement for any reason whatsoever.
(1) hire any employee6.2 CBI and IBI will use their respective best efforts and cooperate with each other in promptly obtaining all government, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision regulatory and shareholder consents and approvals necessary for the payment consummation of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement and the Merger Agreement;. CBI and IBI shall cooperate with each other and shall promptly furnish and make available to each other any and all information, data and facts which may be required to obtain all government, regulatory and shareholder consents and approvals and to comply with all rules in obtaining IBI's shareholders consent to the Merger.
(xxiii) enter into6.3 No party hereto shall take or fail to take, or allow cause or permit its subsidiaries to take or fail to take, or to the best of its ability permit to be taken or omitted to be taken by any Affiliate third persons, any action that would substantially impair the prospects of completing the Merger pursuant to enter into this Agreement and the Merger Agreement, that would materially delay such completion, or that would adversely affect the qualification of the Merger for pooling of interests accounting treatment or as a reorganization within the meaning of Section 368(a) of the Code; provided that nothing herein contained shall preclude CBI from exercising its rights under the Option Agreement.
6.4 CBI and IBI shall agree with each other as to the form and substance of any agreementpress release related to the Merger and shall consult each other as to the form and substance of other public disclosures related thereto, license provided, however, that nothing contained herein shall prohibit any party, following notification to the other, from making any disclosure which is required by applicable law or the rules of the NYSE or NASDAQ.
6.5 IBI shall not authorize or permit any of its officers, directors, employees or agents to directly or indirectly solicit, initiate or encourage any inquiries relating to, or the making of any proposal which constitutes, a "takeover proposal" (as defined below), or recommend or endorse any takeover proposal, or participate in any discussions or negotiations, or provide third parties with any non-public information, relating to any such inquiry or proposal or otherwise facilitate any effort or attempt to make or implement a takeover proposal except to the extent legally required for the discharge of the fiduciary duties of its Board of Directors; provided, however, that IBI may communicate information about any such takeover proposal to its stockholders if, in the judgment of its Board of Directors, based upon the advice of outside counsel, such communication is required under applicable law. IBI will take all actions necessary or advisable to inform the appropriate individuals or entities referred to in the first sentence hereof of the obligations undertaken herein. IBI will notify CBI immediately if any such inquiries or takeover proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, IBI, and IBI will promptly inform CBI in writing of all of the relevant details with respect to the foregoing. As used in this Agreement, "takeover proposal" shall mean any tender or exchange offer, proposal for a merger, consolidation or other similar arrangement that restricts the Company’s performance business combination involving IBI or any of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into subsidiaries or any proposal or offer to enter intoacquire in any manner a substantial equity interest in, any contract or agreement to take a substantial portion of the assets of, IBI or cause to be taken any of its subsidiaries other than the actions prohibited transactions contemplated or permitted by this Section 7(d)Agreement, the Merger Agreement and the Option Agreement.
Appears in 1 contract
Prior to Closing. During Until the period beginning on Closing, the Effective Date Sellers will (and ending on will cause the Operating Company and Stellar Propane to) during ordinary business hours and upon reasonable oral or written notice furnish Buyer and its Representatives with all financial, operating, engineering and other data and information concerning the Business, the General Partner Interest, the Limited Partner Interest and the Stellar Propane Interest as Buyer from time to time requests and will accord Buyer and its Representatives access to the assets associated with the Business and the Sellers’, the Operating Company’s and Stellar Propane’s books, records, Contracts and Other Agreements and Documents and Other Papers (xincluding Tax Returns filed and those in preparation) expiration and will give such Persons the opportunity to ask questions of, and receive answers from, appropriate Representatives of the Call Period if Monsanto Canada does not exercise Sellers, the Call Option or (y) Closing if Monsanto Canada exercises the Call Option, Operating Company and without limiting the covenants set forth in Section 2 Stellar Propane with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any eventGeneral Partner Interest, the Company shall use commercially reasonable efforts to: Limited Partner Interest, the Stellar Propane Interest, the Business and the assets associated with the Business; provided, however, that (A) operate the Company Business any such activities must be conducted in accordance a manner as not to interfere unreasonably with the Research Planoperation of any of the Sellers, the Operating Company, Stellar Propane or the Excluded Subsidiaries, (B) preserve intact the business organization none of the Sellers, the Operating Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement Stellar Propane or the Protiva-Monsanto Services Agreement;
(ii) own any stock Excluded Subsidiaries are required to prepare special records, reports, analysis or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses information that they do not prepare in the ordinary course of business, (C) none of the Sellers, the Operating Company, Stellar Propane or make the Excluded Subsidiaries are required to take any change in action that would jeopardize the attorney-client privilege, (D) none of the Sellers, the Operating Company, Stellar Propane or the Excluded Subsidiaries is required to supply Buyer with any existing borrowing or lending arrangement for or on behalf information that such entities are legally prohibited from supplying and (E) all access must be coordinated through ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and designees of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loansSellers may, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course sole discretion of business;
(xix) liquidatethe Sellers, dissolve accompany the person or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except persons to whom access is provided as contemplated in this Section 7.1. No investigations by this Agreement, repurchase Buyer or its Representatives will reduce or otherwise acquire affect the obligation or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable liability of the Sellers with respect to any debt representations, warranties, covenants or agreements made in this Agreement or in any other than on terms that allow for prepayment at certificate, instrument, agreement or document executed and delivered in connection with this Agreement. Prior to the Closing Date, Buyer will not contact any time;
(xxii) commencevendors, settlesuppliers, title and other insurance companies, employees or offer other contracting parties of the Sellers, the Operating Company, Stellar Propane or propose the Excluded Subsidiaries with respect to settle, any (1) material action, aspect of the Business or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, without the prior oral or allow any Affiliate to enter into any agreementwritten consent of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any on behalf of the actions prohibited by this Section 7(d)Sellers, which consent will not be unreasonably withheld.
Appears in 1 contract
Prior to Closing. During the period beginning on the Effective Date and ending on the (x) expiration of the Call Period if Monsanto Canada does not exercise the Call Option or (y) Closing if Monsanto Canada exercises the Call Option, and without limiting the covenants set forth in Section 2 with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;; 6503474.12
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;; 6503474.12
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d).
Appears in 1 contract
Prior to Closing. During Ruby shall not (i) agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any Financing Commitment Letter, any Debt Financing Agreements or any other definitive agreements or documents related to the period beginning on the Effective Date and ending on the Debt Financing or (xii) expiration substitute other debt financing for all or any portion of the Call Period if Monsanto Canada does Financing from the same or Alternative Financing sources, in each case, without E▇▇▇▇▇▇’▇ prior written consent (such consent not exercise to be unreasonably withheld, conditioned or delayed), except, solely in the Call Option case of the Debt Commitment Letter, any Debt Financing Agreements or (y) Closing if Monsanto Canada exercises the Call Option, and without limiting the covenants set forth in Section 2 with respect any other definitive agreements or documents related to the conduct of Financing, to the Research Program, without the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: extent (A) operate the Company Business in accordance with the Research Plansuch amendment, (B) preserve intact the business organization of the Companysupplement, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall modification or waiver would not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) reduce the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities aggregate amount of the Company Financing (or (2the cash proceeds available therefrom) below the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation amount required to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to consummate the transactions contemplated by this Agreement;
, (xxiii2) enter into, impose new or allow any Affiliate additional conditions precedent to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited Financing, or materially adversely amend, modify or waive any of the existing conditions thereto or (3) otherwise reasonably be expected to materially prevent, delay or impair the availability of the amount of the Financing required to consummate the transactions contemplated by this Agreement or the ability of Ruby or JV NewCo to consummate the transactions contemplated by this Agreement or enforce its rights against the other parties to the Financing Commitment Letters, the Debt Financing Agreements or any other definitive agreements or documents related to the Financing (provided that (subject to compliance with the other provisions of this Section 7(d5.13(b)), R▇▇▇ may amend the Debt Commitment Letter to add additional lenders, arrangers, bookrunners, managers or agents that have not executed the Debt Commitment Letter as of the date of this Agreement) and, (B) with respect to any substitution for other debt financing under clause (ii) above, Ruby reasonably determines (after consultation with E▇▇▇▇▇▇) that the terms and conditions of such substitute debt financing, taken as a whole, are more favorable to JV NewCo than the terms and conditions, taken as a whole, contemplated in the Debt Commitment Letters. Upon any such amendment, supplement or modification of the Debt Commitment Letter in accordance with this Section 5.13, R▇▇▇ shall provide a copy thereof to E▇▇▇▇▇▇, and references to the “Financing Commitment Letters” and “Debt Commitment Letter” shall include such documents as permitted to be amended, supplemented or modified under this Section 5.13, and references to the “Financing” and “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended, supplemented or modified under this Section 5.13.
Appears in 1 contract
Prior to Closing. During the period beginning on the Effective Date and ending on the (x) expiration of the Call Period if Monsanto Canada does not exercise the Call Option or (y) Closing if Monsanto Canada exercises the Call Option, and without limiting the covenants set forth in Section 2 with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
: (i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
; (ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
; (iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
; (iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
; (v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
; (vi) increase the authorized number of any class or series of units, equity interests or other interests;
; (vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
; (viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
; (ix) engage in any business other than the Company Business;
; (x) enter into any transaction or agreement with any third party;
; (xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited by this Section 7(d).18 6503474.12
Appears in 1 contract
Sources: Option Agreement
Prior to Closing. During Until the period beginning on Closing, the Effective Date Sellers will (and ending on will cause the Operating Company and Stellar Propane to) during ordinary business hours and upon reasonable oral or written notice furnish Buyer and its Representatives with all financial, operating, engineering and other data and information concerning the Business, the General Partner Interest, the Limited Partner Interest and the Stellar Propane Interest as Buyer from time to time requests and will accord Buyer and its Representatives access to the assets associated with the Business and the Sellers’, the Operating Company’s and Stellar Propane’s books, records, Contracts and Other Agreements and Documents and Other Papers (xincluding Tax Returns filed and those in preparation) expiration and will give such Persons the opportunity to ask questions of, and receive answers from, appropriate Representatives of the Call Period if Monsanto Canada does not exercise Sellers, the Call Option or (y) Closing if Monsanto Canada exercises the Call Option, Operating Company and without limiting the covenants set forth in Section 2 Stellar Propane with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any eventGeneral Partner Interest, the Company shall use commercially reasonable efforts to: Limited Partner Interest, the Stellar Propane Interest, the Business and the assets associated with the Business; provided, however, that (A) operate the Company Business any such activities must be conducted in accordance a manner as not to interfere unreasonably with the Research Planoperation of any of the Sellers, the Operating Company, Stellar Propane or the Excluded Subsidiaries, (B) preserve intact the business organization none of the Sellers, the Operating Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement Stellar Propane or the Protiva-Monsanto Services Agreement;
(ii) own any stock Excluded Subsidiaries are required to prepare special records, reports, analysis or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses information that they do not prepare in the ordinary course of business, (C) none of the Sellers, the Operating Company, Stellar Propane or make the Excluded Subsidiaries are required to take any change in action that would jeopardize the attorney-client privilege, (D) none of the Sellers, the Operating Company, Stellar Propane or the Excluded Subsidiaries is required to supply Buyer with any existing borrowing or lending arrangement for or on behalf information that such entities are legally prohibited from supplying and (E) all access must be coordinated through J▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and designees of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loansSellers may, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course sole discretion of business;
(xix) liquidatethe Sellers, dissolve accompany the person or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except persons to whom access is provided as contemplated in this Section 7.1. No investigations by this Agreement, repurchase Buyer or its Representatives will reduce or otherwise acquire affect the obligation or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable liability of the Sellers with respect to any debt representations, warranties, covenants or agreements made in this Agreement or in any other than on terms that allow for prepayment at certificate, instrument, agreement or document executed and delivered in connection with this Agreement. Prior to the Closing Date, Buyer will not contact any time;
(xxii) commencevendors, settlesuppliers, title and other insurance companies, employees or offer other contracting parties of the Sellers, the Operating Company, Stellar Propane or propose the Excluded Subsidiaries with respect to settle, any (1) material action, aspect of the Business or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, without the prior oral or allow any Affiliate to enter into any agreementwritten consent of J▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any on behalf of the actions prohibited by this Section 7(d)Sellers, which consent will not be unreasonably withheld.
Appears in 1 contract
Prior to Closing. During Summit shall not (i) agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, the period beginning on Debt Commitment Letter, any Debt Financing Agreements or any other definitive agreements or documents related to the Effective Date and ending on the Debt Financing or (xii) expiration substitute other debt financing for all or any portion of the Call Period if Monsanto Canada does Debt Financing from the same or Alternative Financing sources, in each case, without Cementos’s prior written consent (such consent not exercise to be unreasonably withheld, conditioned or delayed), except, solely in the Call Option case of the Debt Commitment Letter, any Debt Financing Agreements or (y) Closing if Monsanto Canada exercises the Call Option, and without limiting the covenants set forth in Section 2 with respect any other definitive agreements or documents related to the conduct of Debt Financing, to the Research Program, without the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: extent (A) operate the Company Business in accordance with the Research Plansuch amendment, (B) preserve intact the business organization of the Companysupplement, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall modification or waiver would not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly do, or propose to do, any of the following:
(i) waive compliance by Protiva with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as contemplated by this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose the issuance of any units, equity interests or other interests, or create, or authorize the creation of any additional class or series of units, equity interests or other interests;
(vi) increase the authorized number of any class or series of units, equity interests or other interests;
(vii) except as contemplated by this Agreement, distribute any of the Company’s material assets in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement with any Affiliate;
(ix) engage in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies in the ordinary course of business consistent with past practice;
(xiv) make any change in any method of financial accounting or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) reduce the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities aggregate amount of the Company Debt Financing (or (2) the application cash proceeds available therefrom), when taken together with cash on the balance sheet of such policies;
(1) hire any employeeSummit and drawings available under Summit’s revolving credit facility, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation below the amount required to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to consummate the transactions contemplated by this Agreement;
, (xxiii2) enter into, impose new or allow any Affiliate additional conditions precedent to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken any of the actions prohibited Debt Financing, or adversely amend, modify or waive any of the existing conditions thereto, (3) be reasonably expected to materially delay the funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing less likely to occur or (4) otherwise reasonably be expected to materially prevent or impair the availability of the amount of the Debt Financing required to consummate the transactions contemplated by this Agreement or the ability of Summit to consummate the transactions contemplated by this Agreement or enforce its rights against the other parties to the Debt Commitment Letter, the Debt Financing Agreements or any other definitive agreements or documents related to the Debt Financing (provided that, subject to compliance with the other provisions of this Section 7(d)7.08, Summit may amend the Debt Commitment Letter to add additional lenders, arrangers, bookrunners, managers or agents that have not executed the Debt Commitment Letter as of the date of this Agreement) and (B) with respect to any substitution for other debt financing under clause (ii) above, Summit reasonably determines (after consultation with Cementos) that the terms and conditions of such substitute debt financing, taken as a whole, are more favorable to Summit than the terms and conditions, taken as a whole, contemplated in the Debt Commitment Letter. Upon any such amendment, supplement or modification of the Debt Commitment Letter in accordance with this Section 7.08, Summit shall promptly provide a copy thereof to Cementos, and references to the “Debt Commitment Letter” shall include such documents as permitted to be amended, supplemented or modified under this Section 7.08, and references to the “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended, supplemented or modified under this Section 7.08.
Appears in 1 contract
Prior to Closing. During Between the period beginning on date of this Agreement and the Effective Date and ending on Closing Date, except as expressly permitted by this Agreement or the (x) expiration of the Call Period if Monsanto Canada does not exercise the Call Option Local Marketing Agreement, or (y) Closing if Monsanto Canada exercises the Call Option, and without limiting the covenants set forth in Section 2 with respect to the conduct of the Research Program, without the approval of the Board, including the approval of the Representatives in any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto CanadaBuyer, directly which consent shall not be unreasonably conditioned, withheld or indirectly dodelayed and which shall be deemed given if Buyer does not respond to Seller’s request within five Business Days of receipt thereof, or propose to do, any of the followingSeller shall:
(i) waive compliance by Protiva with maintain the PadCo-Protiva License FCC Licenses in full force and Services Agreement or the Protiva-Monsanto Services Agreementeffect;
(ii) own any stock or other securities of any subsidiary or other corporationoperate the Stations in all material respects in accordance with the FCC Licenses, partnershipthe Communications Act, or other entitythe FCC rules and regulations and all applicable Laws;
(iii) create not materially adversely modify any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the CompanyFCC Licenses;
(iv) not create, assume or permit to exist any Liens or rights affecting any of the Station Assets, except as approved by for Permitted Liens or those in existence on the Board or as contemplated by date of this Agreement, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, not sell, authorizelease or dispose of or agree to sell, pledge lease or otherwise encumber or propose the issuance dispose of any unitsof the Station Assets, equity interests except (A) the ordinary course disposition of items that either are obsolete or other interestsunnecessary for the continued operation of the Stations as currently operated or are replaced by assets of comparable or superior utility, or create(B) pursuant to existing contracts or commitments listed on Schedule 1.1(c), if any, or authorize agree to do any of the creation of any additional class or series of units, equity interests or other interestsforegoing;
(vi) increase not terminate, rescind or waive any rights under (A) any Station Contract referenced in Section 6.2(g) or, (B) other than in the authorized number ordinary course of business and consistent with past practice, any class or series of units, equity interests or other interestsStation Contract;
(vii) except as contemplated by this Agreement, distribute not enter into any new contracts or agreements in connection with the operation of the Company’s material assets Stations (or amend any existing Station Contract) (A) other than in the form ordinary course and consistent with past practice and (B) provided that any such new contracts or amendments that are binding after the Closing, except for those contracts or agreements entered into pursuant to Section 4.2(a)(viii) or Section 4.13, shall require post-Closing payments by Buyer of a dividend;less than $100,000 (in the aggregate under such new contracts or amendments); and
(viii) with respect to Station Employees, and except for the Transaction Agreementsas otherwise provided in Schedule 4.2, enter into any transaction or agreement with any Affiliate;
not (ixA) engage in any business grant raises other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by merger, consolidation or combination, or acquisition of stock or assets) any corporation, partnership or other business organization or division or material portion of the assets thereof, except acquisitions of inventory and supplies raises that would be given in the ordinary course of business consistent with past practice;
practice in connection with the October 1st focal point review, (xivB) make any change in any method of financial accounting or financial accounting practice used by the Company, pay substantial bonuses other than such changes as are required by GAAP;
(xvx) except in accordance with generally accepted accounting principles in Canada, consistently applied, make any change to (1) stay bonuses or enhanced severance for which the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable or other similar Liabilities of the Company Buyer has no liability or (2y) the application of such policies;
(1) hire any employeebonuses contemplated under existing employee arrangements, (2C) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, new employment agreements that are not terminable at will or (6D) make any loans agree to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiii) enter into, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract or agreement to take or cause to be taken do any of the actions prohibited by this Section 7(d)foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
Prior to Closing. During the period beginning on the Effective Date and ending on the (xa) expiration The assignment of the Call Period FCC Licenses in connection with the purchase and sale of the Purchased Assets pursuant to this Agreement shall be subject to the prior consent and approval of the FCC.
(b) Sellers and Buyer shall promptly prepare an appropriate application for the FCC Consent pertaining to the FCC Licenses held by such Seller (collectively, the “FCC Applications”) and shall file the FCC Applications with the FCC within seven (7) Business Days of the execution of this Agreement. The cost of the FCC filing fees in connection with the FCC Applications shall be borne one-half by the Sellers collectively and one-half by the Buyer.
(c) Buyer and Sellers shall be responsible for their respective attorney's fees in connection with the FCC Applications. Buyer and Sellers shall prosecute the FCC Applications with all reasonable diligence and otherwise use their commercially reasonable best efforts to obtain the applicable FCC Consent as expeditiously as practicable and shall oppose any objections to the grant of such FCC Consent. Each party hereto agrees to comply with any condition imposed on it by the FCC Consent, except that no party shall be required to comply with a condition if Monsanto Canada (i) the condition was imposed on it as the result of a circumstance the existence of which does not exercise constitute a breach by the Call Option party of any of its representations, warranties, or covenants under this Agreement and (yii) compliance with the condition would have a material adverse effect upon it. The parties hereto shall oppose any requests for reconsideration or judicial review of the FCC Consent. If the Closing if Monsanto Canada exercises shall not have occurred for any reason within the Call Optionoriginal effective period of the applicable FCC Consent, and without limiting no party shall have terminated this Agreement under Section 10, the covenants set forth in parties shall jointly request an extension of the effective period of such FCC Consent. No extension of such FCC Consent shall limit the exercise by either party of its rights under Section 2 10. Buyer and the Sellers shall each oppose any petition to deny or other objection filed with respect to the conduct of applicable FCC Consent to the Research Program, without the approval of the Board, including the approval of the Representatives in extent such petition or objection relates to such party. No Seller nor Buyer shall take any event, the Company shall use commercially reasonable efforts to: (A) operate the Company Business in accordance with the Research Plan, (B) preserve intact the business organization of the Company, (C) preserve the current relationships of the Company with customers, suppliers and other Persons with which the Company has significant business relations, and (D) comply with all of the material covenants set forth in the PadCo-Protiva License and Services Agreement. In addition, during such period the Company shall not and Protiva shall cause the Company to not, without the prior written consent of Monsanto Canada, directly or indirectly dointentional action, or propose intentionally fail to dotake any action, which would reasonably be expected to materially delay the receipt of such FCC Consent.
(a) The risk of any loss, damage, impairment, confiscation, condemnation or revocation of any of the following:Purchased Assets from any cause whatsoever shall be borne by the Seller that owns such Purchased Assets at all times prior to the Closing.
(ib) waive compliance If any damage or destruction of the Purchased Assets or any other event occurs which prevents signal transmission by Protiva any Station in the normal and usual manner and Sellers cannot restore or replace the Purchased Assets so that such conditions are cured and normal and usual transmission is resumed before the Closing Date, the Closing Date shall be postponed, at Buyer’s option, for a period of up to ninety (90) days, to permit the repair or replacement of the damage or loss.
(c) In the event of any damage or destruction of the Purchased Assets described above, if such Purchased Assets have not been restored or replaced and any Station’s normal and usual transmission resumed within the ninety (90) day period specified above, Buyer may terminate this Agreement forthwith without any further obligation hereunder by written notice to any Seller. Alternatively, Buyer may, at its sole option, proceed to close this Agreement and complete the restoration and replacement of such damaged Purchased Assets at Buyer’s expense after the Closing Date, in which event Sellers promptly shall deliver to Buyer following receipt thereof any insurance proceeds which it may receive prior to or after Closing in connection with such damage or destruction of the Purchased Assets (such amount not to exceed Buyer’s costs and expense in 24 connection with such restoration and replacement, but in no event will Sellers be liable in the event it does not receive any insurance proceeds or if the insurance proceeds received are insufficient to cover Buyer’s costs and expenses in full).
7.3. Except as necessary for the consummation of the transactions contemplated by this Agreement and except as and to the extent required by law, including, without limitation, disclosure requirements of federal or state securities laws and the rules and regulations of securities markets, each party will keep confidential any information obtained from the other party in connection with the PadCo-Protiva License and Services Agreement or the Protiva-Monsanto Services Agreement;
(ii) own any stock or other securities of any subsidiary or other corporation, partnership, or other entity;
(iii) create any encumbrance on any material assets or properties of the Company (whether tangible or intangible) or the capital stock of the Company;
(iv) except as approved by the Board or as transactions contemplated by this Agreement. If this Agreement is terminated, incur any Indebtedness or guarantee, directly or indirectly, any Indebtedness;
(v) issue, transfer, deliver, sell, authorize, pledge or otherwise encumber or propose each party will return to the issuance of any units, equity interests or other interests, or create, or authorize party all information obtained by such party from the creation of any additional class or series of units, equity interests or other interests;
(vi) increase party in connection with the authorized number of any class or series of units, equity interests or other interests;
(vii) except as transactions contemplated by this Agreement, distribute any of the Company’s material assets .
7.4. Buyer and Sellers shall cooperate fully with each other and their respective counsel and accountants in the form of a dividend;
(viii) except for the Transaction Agreements, enter into any transaction or agreement connection with any Affiliate;
(ix) engage actions required to be taken as part of their respective obligations under this Agreement, and Buyer and each Seller shall execute such other documents as may be reasonably necessary and desirable to the implementation and consummation of this Agreement, and otherwise use their commercially reasonable best efforts to consummate the transaction contemplated hereby and to fulfill their obligations under this Agreement, including the obligations contained in Section 6.4. Notwithstanding the foregoing, no Seller nor Buyer shall have an obligation to agree to any materially adverse change in any business other than the Company Business;
(x) enter into any transaction or agreement with any third party;
(xi) sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, license, abandon, permit to lapse or otherwise dispose of, any of the material tangible assets of the Company, any material proprietary rights or technology, except as approved by the Board;
(xii) sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, or agree to sell, assign, transfer, lease, sublicense, abandon, permit to lapse or otherwise dispose of, any of the Company’s rights in, to, or under the Protiva Purchased License or any of Protiva’s rights in the capital stock of the Company;
(xiii) acquire (by mergerAssumed Contract to obtain a Consent required with respect thereto. The Sellers shall cooperate with Buyer to encourage each tower lessor, consolidation or combinationcustomer, or acquisition of stock or assets) any corporationprogrammer, partnership broadcaster, engineer, utility provider, supplier or other business organization or division or material portion associate of Sellers in connection with the operation of the assets thereofStations to maintain the same business relationships with the Stations after the Closing, except acquisitions as applicable, as it maintained with the Stations prior to the Closing.
7.5. From the date of inventory this Agreement until the Closing Date, each Seller will afford Buyer, its officers, counsel, accountants and supplies in other representatives, upon two (2) business days prior written notice, full access to the ordinary course Purchased Assets and Stations and all of Sellers’ contracts, commitments and other records related to such Purchased Assets, at all reasonable times during business consistent hours, and such representatives will be furnished true and complete copies of the same as such representatives may reasonably request; provided, however, that such review shall be conducted so as to not interfere unreasonably with past practice;or disrupt the business and broadcast operations of such Seller.
(xiv) make any change in any method 7.6. From the date hereof until the earlier to occur of financial accounting the Closing Date or financial accounting practice used by the Company, other than such changes as are required by GAAP;
(xv) except termination of this Agreement in accordance with generally accepted accounting principles in CanadaArticle 10, consistently applied, make each Seller shall promptly notify the Buyer of:
(a) any change to (1) the Company’s normal month to month accounting practices and policies, including those relating to the collection of accounts receivable, the payment of accounts payable notice or other similar Liabilities of the Company or (2) the application of such policies;
(1) hire communication from any employee, (2) enter into or amend any employment, deferred compensation, severance or similar contract, (3) incur any obligation to compensate any member of the Board or officer of the Company, (4) pay or make provision for the payment of any bonus, profit sharing, deferred compensation, pension, retirement, severance or other similar payment or arrangement to any employee, or any member of the Board, officer of the Company or any of its Affiliates, (5) adopt any employee benefit plan, or (6) make any loans to any officer, member of the Board, Affiliate, agent, representative or consultant of the Company (other than advances to cover business expenses Governmental Authority in the ordinary course of business) or make any change in any existing borrowing or lending arrangement for or on behalf of any of such Persons;
(xvii) amend the Company’s organizational documents;
(xviii) make any loans, advances or capital contributions to, or investments in, any other Person, other than advances to cover business expenses in the ordinary course of business;
(xix) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;
(xx) (1) declare or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any securities, (2) split, combine or reclassify any of its securities, (3) effect a recapitalization, (4) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for units, equity interests or similar interests, or (5) except as contemplated by this Agreement, repurchase or otherwise acquire or offer to redeem or otherwise acquire, directly or indirectly, any units, equity interests or similar interests;
(xxi) create, incur, assume, suffer to exist or otherwise be liable connection with respect to any debt other than on terms that allow for prepayment at any time;
(xxii) commence, settle, or offer or propose to settle, any (1) material action, or (2) action that relates to the transactions contemplated by this Agreement;
(xxiiib) enter into(i) the occurrence or non-occurrence of any event which has caused any representation or warranty made by it herein to be untrue or inaccurate in any material respect at any time on or after the date hereof and prior to the Closing and (ii) any material failure on the part of such Seller to comply with or satisfy any covenant, or allow any Affiliate to enter into any agreement, license or other similar arrangement that restricts the Company’s performance of its obligations under the Transaction Agreements; or
(xxiv) authorize, commit, enter into or offer to enter into, any contract condition or agreement to take or cause set forth herein to be taken complied with or satisfied by such Seller hereunder on or after the date hereof and prior to the Closing; and
7.7. All Transfer Taxes arising out of or in connection with the transactions effected pursuant to this Agreement shall be borne by the applicable Seller. The party which has the primary responsibility under applicable Law for the payment of any particular Transfer Tax shall prepare the relevant Tax Return. If Buyer is required to pay any Transfer Tax, the applicable Seller shall pay to Buyer the amount of such Transfer Taxes by check or wire transfer of immediately available funds no later than the date that is the later of (i) five (5) Business Days after the date Buyer notifies such Seller of the actions prohibited amount of Transfer Taxes required to be paid by Buyer or (ii) two (2) Business Days prior to the due date for such Transfer Taxes. The applicable Seller and Buyer shall cooperate in the preparation, execution and filing of all Transfer Tax Returns and shall cooperate in seeking to secure any available exemptions from such Transfer Taxes.
7.8. The applicable Seller shall be liable for payment of and shall prepare and properly file on a timely basis true, complete and accurate Tax Returns and other documentation for any and all Taxes incurred with respect to the Purchased Assets owned by such Seller and the operation of such Purchased Assets for any Pre-Closing Tax Period, and Buyer shall be liable for payment of and shall prepare and properly file on a timely basis true, complete and accurate Tax Returns and other documentation for any and all Taxes incurred with respect to such Purchased Assets and the operation of such Purchased Assets for any Post-Closing Tax Period. Buyer shall prepare and properly file, consistent with past practice, all Tax Returns for any taxable period beginning on or before and ending after the Closing Date (a “Straddle Period”). Notwithstanding anything to the contrary in this Section 7(d)7.8, all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Purchased Assets for any Straddle Period shall be apportioned between the applicable Seller, on the one hand, and Buyer, on the other hand, based on the number of days of such period up to and including the Closing Date and the number of days of such period after the Closing Date, and such Seller shall be liable for the proportionate amount of such Taxes that is attributable to the portion of the Straddle Period up to and including the Closing Date, and Buyer shall be liable for the proportionate amount of such Taxes that is attributable to the portion of the Straddle Period beginning after the Closing Date. Other Taxes, if any, shall be allocated between the applicable Seller and the Buyer based on a closing of the books on the Closing Date.
Appears in 1 contract