Prohibited Actions Pending Closing Clause Samples
The "Prohibited Actions Pending Closing" clause restricts certain activities or decisions by a party, typically the seller, during the period between signing a contract and the final closing of a transaction. This clause often prevents actions such as selling assets, incurring new debts, or making significant operational changes without the buyer's consent. Its core function is to preserve the status quo of the business or asset being transferred, ensuring that its value and condition remain consistent until the transaction is completed, thereby protecting the interests of the buyer.
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Prohibited Actions Pending Closing. Unless otherwise expressly permitted herein or approved by Parent in writing, from the date hereof until the Closing, the Company shall not:
(a) declare, set aside or pay any dividend or other distribution in respect of any shares of capital stock of the Company or repurchase, redeem or acquire any outstanding shares of capital stock or other securities of, or other ownership interest in, the Company;
(b) merge, consolidate or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization involving the Company, other than the Merger;
(c) split, combine or reclassify any shares of capital stock of the Company or other securities of the Company or amend the terms of any such stock or securities;
(d) change accounting or tax reporting principles, methods or policies of the Company;
(e) make, change or rescind any material election concerning taxes or tax returns, file any amended tax return, enter into any closing agreement with respect to taxes, settle or compromise any material tax claim or assessment or surrender any right to claim a refund of taxes or obtain any tax ruling;
(f) enter into any transaction other than in the Ordinary Course of Business;
(g) make any loans, advances or capital contributions to, or investments in, any Person or pay any fees to any director, officer, partner or Affiliate thereof or to any Company Stockholder (who is not a director, officer or partner) or Affiliate of any Company Stockholder (other than business expenses incurred in the Ordinary Course of Business);
(i) mortgage, pledge or subject to any lien any of its assets, or (ii) acquire any assets or sell, assign, transfer, convey, lease or otherwise dispose of any assets of the Company, except, in the case of clause (ii), in the Ordinary Course of Business;
(i) cancel or compromise any Indebtedness or amend, cancel, terminate, relinquish, waive or release any contract or right, in each case, except in the Ordinary Course of Business, and which, in the aggregate, would not be material to the Company taken as a whole;
(j) make or commit to make any capital expenditures or capital additions or betterments in excess of $30,000 individually or $75,000 in the aggregate;
(k) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently, or otherwise) any Indebtedness where such Indebtedness of the Company exceeds, in the aggregate, $100,000 other t...
Prohibited Actions Pending Closing. Unless otherwise provided for herein or approved by Martek in writing, from the date hereof until the Closing, neither the Company nor its Subsidiary shall:
(a) amend or otherwise change its certificate of incorporation or bylaws, or the equivalent organization documents, as applicable;
(b) issue or sell or authorize or reserve for issuance or sale (other than any issuance of Company Capital Stock upon (i) the exercise of any outstanding option or warrant to purchase Company Capital Stock which option or warrant was issued prior to the date hereof in accordance with the terms of the relevant stock option or warrant agreement and the terms of which are disclosed on Schedule 2.3 or which are subsequently issued in accordance with the succeeding limitations of this Section 5.2(b) or (ii) satisfaction of the liabilities and obligations listed on Schedule 5.2(b)), or grant any options or make other agreements with respect to, any shares of its capital stock or any other of its securities, except for issuances of options (x) in satisfaction of the liabilities and obligations listed on Schedule 5.2(b) or (y) to purchase Company Common Stock which may be granted under the Stock Plan to new hires and in the Ordinary Course of Business, provided that no such stock options shall be granted to members of senior management of the Company other than as provided in Schedule 5.2(b);
(c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise with respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock except for repurchases of unvested shares in connection with the termination of any employee pursuant to stock option or purchase agreements;
(e) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, except in the Ordinary Course of Business, consistent with past practice;
(f) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or Assets) any corporation, partnership, other business organization or any division thereof or any material amount of Assets;
Prohibited Actions Pending Closing. Unless otherwise provided for herein or approved by Purchaser in writing, from the date hereof until the Closing Date, the Seller shall cause the Company not to do or enter into the following:
(a) amend or otherwise change its Articles of Incorporation, By-Laws or other organizational documents;
(b) issue or sell, authorize for issuance or sale, grant any options or make any other agreements with third parties with respect to the Seller’s and/or the Company’s stock;
(c) authorize or incur any additional debt for money borrowed, or incur any additional debt, liability or obligation other than in the ordinary course of business, other than in favor of Purchaser;
(d) mortgage, pledge or subject to Lien or other encumbrance any of its properties or assets, or agree to do so;
(e) sell or otherwise dispose of, or agree to sell or dispose of any of its assets or properties other than in the ordinary course of business;
(f) amend or terminate any lease, contract, undertaking or other commitment listed in any of the disclosure schedules annexed hereto to which it is a party, or to take action or fail to take any action, constituting any event of default thereunder;
(g) assume, guarantee or otherwise become responsible for the obligations of any other party or agree to do so;
(h) make any change in accounting methods or principles;
(i) compromise or settle any material Claim, other than with the consent of the Purchaser;
(j) acquire any of the Seller’s or Company’s capital stock or other ownership interests of any other entity or acquire all or substantially all of the assets of another entity;
(k) take any action prior to the Closing Date which would breach any of the representations and warranties contained in this Agreement;
(l) take any action or omit to take any action if taking or omitting to take such action could have a Material Adverse Effect; or
(m) agree to take any of the actions described in this Section 4.5.
Prohibited Actions Pending Closing. Unless otherwise provided for herein or approved by Purchaser in writing, from the date hereof until the Closing Date, the Seller shall cause the Seller not to do or enter into the following:
(a) amend or otherwise change its Articles of Incorporation, By-Laws or other organizational documents;
(b) mortgage, pledge or subject to Lien or other encumbrance any of its properties or assets, or agree to do so;
(c) sell or otherwise dispose of, or agree to sell or dispose of any of its assets or properties;
(d) amend or terminate any lease, contract, undertaking or other commitment listed in any of the disclosure schedules annexed hereto to which it is a party, or to take action or fail to take any action, constituting any event of default thereunder;
(e) assume, guarantee or otherwise become responsible for the obligations of any other party or agree to do so;
(f) make any change in accounting methods or principles;
(g) compromise or settle any material Claim, other than with the consent of the Purchaser;
(h) acquire the capital stock or other ownership interests of any other entity or acquire all or substantially all of the assets of another entity;
(i) take any action prior to the Closing Date which would breach any of the representations and warranties contained in this Agreement;
(j) take any action or omit to take any action if taking or omitting to take such action could have a Material Adverse Effect, as defined in Section 8.3 hereof, or
Prohibited Actions Pending Closing. Unless otherwise expressly provided for herein or approved by Buyer in writing, from the date of this Agreement until the Closing Date, Seller shall not:
(1) Accept any advance payment for more than thirty (30) days of any rent or residents’ occupancy fees under any lease included in the Assumed Contracts or occupancy agreement; or waive, reduce or forgive any rent or occupancy fees required to be paid under any occupancy agreement, or grant any lease or other concessions or free rent periods under any occupancy agreement;
(2) Make any capital improvements to the Real Estate in excess of $10,000 or incur any other obligations in excess of $10,000;
(3) Make any commitments or representations to any applicable governmental authority, any adjoining or surrounding property owners, any civic association, any utility or any other person or entity that would in any manner be binding upon Buyer;
(4) Sell or otherwise dispose of, or agree to sell or dispose of any of the Assets, except in the ordinary course of business as permitted by this Agreement; and
(5) Take any action prior to the Closing Date which would breach any of the representations and warranties contained in this Agreement or otherwise take any action outside of the ordinary course of business of Seller.
Prohibited Actions Pending Closing. Unless otherwise provided for herein or approved by Acquired Corp in writing, from the date hereof until the Closing, Parent shall not, and shall cause Acquiring Corp not to:
(a) issue or sell or authorize for issuance or sale, or grant any options or make other agreements with respect to, any shares of its capital stock or any other of its securities;
(b) increase the number of shares eligible for grant under its option plan;
(c) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to any of its capital stock;
(d) mortgage, pledge or subject to Lien, any of its assets or properties or agree to do so except for Permitted Liens;
(e) take any action, other than in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivables); or
(f) announce an intention, commit or agree to do any of the foregoing.
Prohibited Actions Pending Closing. Unless otherwise provided for herein or approved by Parent in writing, from the date hereof until the Closing, Acquired Corp shall not and shall cause each Acquired Entity not to:
(a) issue or sell or authorize for issuance as sale, or grant any options or make other agreements with respect to, any shares of capital stock or any of its securities;
(b) increase the number of shares eligible for grant under any stock option;
(c) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(d) acquire (including by merger, consolidation, or acquisition of stock or assets) any corporation, partnership, other business organization or any division thereof;
(e) mortgage, pledge or subject to Lien, any of its assets or properties or agree to do so except for Permitted Liens;
(f) take any action, other than in the ordinary course of business and consistent with past practice, with respect to accounting policies or procedures (including, without limitation, procedures with respect to the payment of accounts payable and collection of accounts receivables);
(g) make any material Tax election or settle or compromise any material federal, state, local or foreign Tax liability;
(h) settle or compromise any pending or threatened suit, action or claim which is material or which relates to any of the transactions contemplated by this Agreement;
(i) except in connection with the sale of any Acquired Entity's products in the ordinary course of business and consistent with past practice, sell, assign, transfer, license, sublicense, pledge or otherwise encumber any of the Intellectual Property Rights; or
(j) announce an intention, commit or agree to do any of the foregoing.
Prohibited Actions Pending Closing. Unless otherwise expressly provided for herein or approved by Buyer in writing, from the date of this Agreement until the Closing Date, Seller shall not:
(a) Induce, solicit or entice any Residents to transfer or discontinue any relationships with Seller prior to the Closing Date or Buyer after the Closing Date;
(b) Remove any Personal Property necessary for the operation of the Business from the Facilities unless the same is replaced by property of substantially equal or greater value, or unless the removal is authorized pursuant to the provisions of this Agreement;
(c) Interfere with or disrupt Buyer’s relationship with any employee or Resident of Seller;
(d) Accept any advance payment for more than thirty (30) days of any rent or Residents’ occupancy fees under any Lease or occupancy agreement; or waive, reduce or forgive any rent or occupancy fees required to be paid under any occupancy agreement, or grant any lease or other concessions or free rent periods under any occupancy agreement;
(e) After the expiration of the Study Period, renew, extend, terminate, modify or waive any term or condition of any of the Service Contracts or Resident occupancy agreement, nor, after the expiration of the Study Period, enter into any new Contracts relating to the Facilities or the Business, if such Contracts would survive the Closing;
(f) Make any capital improvements to the Property in excess of $10,000;
(g) Make any commitments or representations to any applicable Governmental Authority, any adjoining or surrounding property owners, any civic association, any utility or any other person or entity that would in any manner be binding upon Buyer or upon the Property or the Business;
(h) Sell or otherwise dispose of, or agree to sell or dispose of any of the Assets, except in the ordinary course of business as permitted by this Agreement; and
(i) Take any action prior to the Closing Date which would breach any of the representations and warranties contained in this Agreement or otherwise take any action outside of the ordinary course of business of Seller.
Prohibited Actions Pending Closing. Unless:
(i) otherwise provided for herein, (ii) approved in writing by CHH, or (iii) required of Clariti in order for Clariti to comply with any: (a) contract, agreement or instrument to which Clariti is a party or by which Clariti is bound or (ii) law, rule, regulation, court order or judgment, from the date hereof until the Closing Date, Clariti shall not take any of the following actions:
5.2.1 Amend or otherwise change its certificate of incorporation, bylaws or other governing documents;
5.2.2 Operate the business of Clariti in any way other than in the ordinary course;
5.2.3 Authorize or issue shares of any class or series of equity securities or securities convertible into or exercisable for any equity securities;
5.2.4 Restructure, reclassify or otherwise modify or amend the terms of its common stock or any other class or series of equity securities or securities convertible into or exercisable for any equity securities of Clariti;
5.2.5 Voluntarily liquidate, dissolve or wind-up Clariti, make any filing under any state or federal bankruptcy, insolvency or reorganization law or other law for relief from creditors or the protection of debtors, make any assignment for the benefit of creditors or consent to the appointment of a receiver for itself or any part of its property, or conduct any form of recapitalization or reorganization of Clariti (other than pursuant to the terms hereof); or
5.2.6 Merge or consolidate with or into any other entity, or permit any other entity to consolidate or merge with or into Clariti, or participate (other than pursuant to the terms hereof) in a share exchange with or sell, license, lease, transfer, mortgage, pledge, encumber, contribute, or otherwise dispose of all or any substantial part of its assets (tangible or intangible), or all or any substantial part of it intellectual property, to any other person or entity, or enter into any transaction series of related transactions which results in a change in the person or persons exercising control of Clariti immediately prior to such transactions, other than (i) sales of assets in the ordinary course of business, or (ii) licenses granted in the ordinary course of business.
Prohibited Actions Pending Closing. Unless otherwise provided for herein or approved by Merger Sub in writing, from the date hereof until the Closing, Target shall not:
(i) amend or otherwise change its Certificate of Incorporation or By-laws;
(ii) issue or sell or authorize for issuance or sale or grant any options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require Target to issue, sell, or otherwise cause to become outstanding any of its capital stock (other than any issuance of Target Shares upon the conversion of Target Preferred Shares or upon the exercise of any outstanding Option which Option was issued prior to the date hereof in accordance with the terms of the relevant stock option agreement) any capital stock of Target;
(iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise with respect to Target Shares or Target Preferred Shares;
(iv) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any Target Shares or Target Preferred Shares;
(v) acquire any corporation, partnership, other business organization or any division thereof or any material amount of assets;
(vi) incur any indebtedness for borrowed money or issue any debt securities or make any loans or advances, except in the Ordinary Course of Business, consistent with past practice;
(vii) enter into any contract or agreement resulting in obligations to Target outside the Ordinary Course of Business;
(viii) authorize any capital commitment which is in excess of $250,000 or capital expenditures which are, in the aggregate, in excess of $250,000, except for commitments and capital expenditures in the Ordinary Course of Business;
(ix) mortgage, pledge or subject to a Security Interest, any of its assets or properties except for (a) liens for taxes, assessments, or similar charges, incurred in the Ordinary Course of Business that are not yet due and payable or are being contested in good faith; (b) pledges or deposits made in the Ordinary Course of Business; (c) liens of mechanics, materialmen, warehousemen or other similar liens securing obligations incurred in the Ordinary Course of Business that are not yet due and payable or are being contested in good faith; or (d) similar liens and encumbrances which are incurred in the Ordinary Course of Business and which do not in the aggregate materially detract from the value of such asset...