Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing. (a) Parent and Rodeo, Inc. covenant and agree that, between the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed: (i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business; (ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations; (iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and (iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice. (b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed: (i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents; (ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b); (iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement; (iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests; (v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests; (vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi); (vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole; (viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii); (ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements; (x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada; (xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law; (xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP; (xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01; (xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return; (xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act); (xvi) enter into, amend, modify or supplement any Material Contracts in any material respect; (xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above; (xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20; (xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or (xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 4 contracts
Sources: Unit Transfer and Contribution Agreement (Plains Resources Inc), Unit Transfer and Contribution Agreement (Plains Resources Inc), Unit Transfer and Contribution Agreement (Plains Resources Inc)
Additional Agreements. SECTION 5.01 Conduct 5.1 Preparation of Business Prior to the ClosingForm S-4, Proxy Statement; Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As promptly as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company Parent and the Company Subsidiaries shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be conducted only in, included as a prospectus. Each of Parent and the Company and shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, cause the Proxy Statement to keep available be mailed to holders of Company Common Stock as promptly as practicable after the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceForm S-4 is declared effective.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed If at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent Effective Time there shall not be unreasonably withheld or delayed:
occur (i) amend, propose any event with respect to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any of its subsidiaries, or with respect to other information supplied by Company Subsidiary for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any class, comments from the SEC or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest its staff or any other ownership interests (including, without limitation, appropriate government official and of any phantom interest, general partnership interest requests by the SEC or limited partnership interest) its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu ofits representatives, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest Parent or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or propertiesrepresentatives, other than transactions that are in as the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiarycase may be, on the one hand, and the SEC or its staff or any of their respective officers, directors, unitholders, owners or Affiliatesother appropriate government official, on the other hand, which if entered into prior with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the date hereof would be required Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to be disclosed pursuant each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 3.20;
(xix) materially alter (through merger4.3, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership Board of Directors of the Company or any Company Subsidiary other than as contemplated by shall recommend to the Company's stockholders the approval and adoption of this Agreement; or
, the Merger and the other transactions contemplated hereby (xx) enter into any contract, agreement, commitment or arrangement to do any the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 4 contracts
Sources: Merger Agreement (Mafco Holdings Inc), Agreement and Plan of Merger (Golden State Bancorp Inc), Merger Agreement (Ford Gerald J)
Additional Agreements. SECTION 5.01 Conduct 6.01. Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; Stockholders Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company shall otherwise consent prepare and file with the SEC the Proxy Statement in writingpreliminary form and Parent shall prepare and file with the SEC the Form S-4, in which consent shall not the Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus, and each of the Company and Parent shall use its reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. The Company and Parent shall each give the other party an opportunity to review, comment on and make reasonable changes to the Proxy Statement and the Form S-4, respectively. Each of the Company Subsidiaries and Parent shall use its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its reasonable efforts to cause the Proxy Statement to be conducted only in, mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any reasonable action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Stock Plans and the Company shall furnish all information concerning the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such or any of its representatives, on the one hand, and the Company Subsidiaries SEC or its staff, on the other hand, with customersrespect to the Proxy Statement, contractholders and other Persons with whom the Company Form S-4 or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceMerger.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed If at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor Effective Time any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose event with respect to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions information supplied by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than for inclusion in the case of any direct Proxy Statement or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary Form S-4 shall occur which is required to be described in respect of, in lieu an amendment of, or in substitution of the Unitsa supplement to, the Incentive Distribution RightsProxy Statement or the Form S-4, the GP Interest or other ownership interests;
(v) redeemCompany will promptly notify Parent of such event, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or shall cooperate with Parent in the ordinary course prompt filing with the SEC of business, sell, transfer any necessary amendment or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary supplement to the Company's current businessProxy Statement and the Form S-4 and, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;, in disseminating the information contained in such amendment or supplement to the stockholders of the Company.
(xiic) change If at any method of accounting time prior to the Effective Time any event with respect to Parent or accounting practice any Parent Subsidiary, or with respect to other information supplied by the Parent for inclusion in the Proxy Statement or the Form S-4 shall occur which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, Parent will promptly notify the Company of such event, and Parent shall cooperate with Company in the prompt filing with the SEC of any necessary amendment or any supplement to the Proxy Statement and the Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the stockholders of the Company.
(d) The Company Subsidiaryshall, as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") for the purpose of seeking the Company Stockholder Approval. The Company shall consult with Parent in determining a date for such meeting that is reasonably acceptable to Parent and the Company. The Company shall, through the Company Board, recommend to its stockholders that they give the Company Stockholder Approval, except for any such change required to the extent that the Company Board shall have withdrawn or modified its approval or recommendation of this Agreement or the Merger as permitted by U.S. GAAP;Section 5.02(b).
(xiiie) payThe Company shall instruct Deloitte & Touche LLP, discharge or satisfy any material claimthe Company's independent public accountants, litigationto deliver to Parent a letter dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to Parent, liability or obligation the form and substance of which shall be negotiated between Parent and Deloitte & Touche LLP (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action intent that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined such letter should be customary in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or scope and substance for letters delivered by such accounting firm in connection with registration statements similar to the transactions described in clause (vi) above;Form S-4).
(xviiif) except as provided in this AgreementParent shall instruct KPMG Peat Marwick LLP, enter intoParent's independent public accountants, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between to deliver to the Company and/or any Company Subsidiary, a letter dated a date within two business days before the date on which the one hand, Form S-4 shall become effective and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior addressed to the date hereof would Company, the form and substance of which shall be required negotiated among the Company, Parent and KPMG Peat Marwick LLP (with the intent that such letter should be customary in scope and substance for letters delivered by such accounting firm in connection with registration statements similar to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingForm S-4).
Appears in 4 contracts
Sources: Merger Agreement (Genovese Drug Stores Inc), Merger Agreement (Penney J C Co Inc), Merger Agreement (Penney J C Co Inc)
Additional Agreements. SECTION 5.01 Conduct 5.1 Preparation of Business Prior to the ClosingForm S-4 and the Joint Proxy Statement; Stockholders' Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, Phone and ▇▇▇▇▇▇▇▇.▇▇▇ shall prepare and file with the SEC the Joint Proxy Statement, and Phone shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Phone and ▇▇▇▇▇▇▇▇.▇▇▇ shall use commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Phone will use commercially reasonable efforts to cause the Joint Proxy Statement to be mailed to Phone's stockholders, and ▇▇▇▇▇▇▇▇.▇▇▇ will use commercially reasonable efforts to cause the Joint Proxy Statement to be mailed to ▇▇▇▇▇▇▇▇.▇▇▇'s stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Phone shall also take any action required to be taken under any applicable state securities laws in connection with the issuance of shares of Phone Common Stock in the Merger and the time conversion of ▇▇▇▇▇▇▇▇.▇▇▇ Options into options to acquire Phone Common Stock, and ▇▇▇▇▇▇▇▇.▇▇▇ shall furnish all information concerning ▇▇▇▇▇▇▇▇.▇▇▇ and the holders of ▇▇▇▇▇▇▇▇.▇▇▇ Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 or the Joint Proxy Statement will be made by Phone without ▇▇▇▇▇▇▇▇.▇▇▇'s prior consent and without providing ▇▇▇▇▇▇▇▇.▇▇▇ the opportunity to review and comment thereon. Phone will advise ▇▇▇▇▇▇▇▇.▇▇▇ promptly after it receives notice thereof, of the Closingtime when the Form S-4 has become effective or any supplement or amendment has been filed, except as the issuance of any stop order, the suspension of the qualification of the Phone Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to Phone or ▇▇▇▇▇▇▇▇.▇▇▇, or any of their respective affiliates, officers or directors, should be discovered by Phone or ▇▇▇▇▇▇▇▇.▇▇▇ which should be set forth in Section 5.01 an amendment or supplement to any of the Disclosure Letter Form S-4 or as contemplated by the Joint Proxy Statement, so that any other provision of this Agreementsuch documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses light of the Company circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and the Company Subsidiaries an appropriate amendment or supplement describing such information shall be conducted only in, and promptly filed with the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organizationSEC and, to keep available the services extent required by law, disseminated to the stockholders of the current employees of Rodeo, Inc. Phone and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice▇▇▇▇▇▇▇▇.▇▇▇.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary Phone shall, between as promptly as practicable after the date of this Agreement and Form S-4 is declared effective under the ClosingSecurities Act, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose duly give notice of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general convene and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any hold a meeting of its assets or properties, other than transactions that are in stockholders (the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii"Phone Stockholders' Meeting") except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the DGCL for the purpose of obtaining the Phone Stockholder Approval and shall, subject to the provisions of this Section 5.01;
(xiv4.2(b) settle or compromise any material Audithereof, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise through its Board of Directors, recommend to a claim under its stockholders the WARN Act or any similar state law or regulation because approval of a "plant closing" or "mass layoff" (each as defined the issuance of the shares of Phone Common Stock in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from Merger and the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingPhone Charter Amendment.
Appears in 4 contracts
Sources: Merger Agreement (Software Com Inc), Merger Agreement (Phone Com Inc), Merger Agreement (Phone Com Inc)
Additional Agreements. SECTION 5.01 Conduct 8.01. Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; Shareholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, CDnow, Holdco, Time Warner and Sony shall jointly prepare and CDnow shall file with the time SEC the Proxy Statement in preliminary form and CDnow, Holdco, Time Warner and Sony shall jointly prepare and Holdco shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus, and each of CDnow, Holdco, Time Warner and Sony shall use its reasonable efforts to respond as promptly as practicable to any comments of the ClosingSEC with respect thereto. Each of CDnow, except Holdco, Time Warner and Sony shall use its reasonable efforts to have the Form S-4 declared effective under the Securities Act as set forth in Section 5.01 of promptly as practicable after such filing. CDnow shall use its reasonable efforts to cause the Disclosure Letter or Proxy Statement to be mailed to CDnow's shareholders as contemplated by any other provision of this Agreement, unless promptly as practicable after the Buyer Form S-4 is declared effective under the Securities Act. Holdco shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect qualifying to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest do business in any corporation, partnership, other business organization jurisdiction in which CDnow or any division thereof or any assets, except for transactions Columbia House are not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(viinow so qualified) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in taken under any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar applicable state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or securities laws in connection with the transactions described issuance of Holdco Common Stock in clause (vi) above;
(xviii) except the Transactions and under CDnow Stock Plans and CDnow Warrants, and CDnow shall furnish all information concerning CDnow and the holders of CDnow Common Stock and rights to acquire CDnow Common Stock pursuant to CDnow Stock Plans and CDnow Warrants as provided may be reasonably requested in this Agreement, enter into, amend, terminate connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or waive its staff and of any provision of, request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiaryof its representatives, on the one hand, and any of their respective officers, directors, unitholders, owners the SEC or Affiliatesits staff, on the other hand, which if entered into with respect to the Proxy Statement, the Form S-4 or the Transactions. No filing of, or amendment or supplement to, the Form S-4 will be made by Holdco, or the Proxy Statement will be made by CDnow, without providing each of Time Warner and Sony the opportunity to review and comment thereon and receiving the prior approval thereof of each of Time Warner and Sony.
(b) If at any time prior to the date hereof would be Effective Time any event with respect to CDnow or any CDnow Subsidiary or with respect to other information supplied by CDnow for inclusion in the Proxy Statement or the Form S-4 shall occur which is required to be disclosed pursuant described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, CDnow shall promptly notify Time Warner and Sony of such event, and CDnow and Holdco shall cooperate with Time Warner and Sony in the prompt filing with the SEC of any necessary amendment or supplement to Section 3.20;the Proxy Statement and Form S-4 and, as required by Law, in disseminating the information contained in such amendment or supplement to CDnow's shareholders.
(xixc) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in If at any other fashion) time prior to the corporate structure or ownership of the Company or Effective Time any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement event with respect to do any of the Columbia House Entities or any of the Columbia House Subsidiaries, or with respect to any other information supplied by Time Warner or Sony for inclusion in the Proxy Statement or the Form S-4, shall occur which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, Time Warner or Sony, as the case may be, shall promptly notify CDnow of such event, and Time Warner and Sony shall cooperate with CDnow and Holdco in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement and the Form S-4 and, as required by Law, in disseminating the information contained in such amendment or supplement to CDnow's shareholders.
(d) CDnow shall, as soon as practicable following the date of this Agreement, establish a record date (which shall be as soon as practicable following the date of this Agreement) for, and duly call, give notice of, convene and hold, a meeting of its shareholders (the "CDnow Shareholders Meeting") for the purpose of obtaining the CDnow Shareholder Approval. CDnow shall use its reasonable efforts to cause the Proxy Statement to be mailed to CDnow's shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. CDnow shall, through the CDnow Board, recommend to its shareholders that they give the CDnow Shareholder Approval. Without limiting the generality of the foregoing, CDnow agrees that its obligations pursuant to this Section 8.01(d) shall not be affected by the commencement, public proposal, public disclosure or communication to CDnow of any CDnow Takeover Proposal.
(e) CDnow shall use its reasonable efforts to cause to be delivered to Time Warner and Sony a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, CDnow's independent auditors, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to Time Warner and Sony, in form and substance reasonably satisfactory to Time Warner and Sony and customary in scope and substance for comfort letters delivered by independent public accountants in connection with registration statements similar to the Form S-4.
(f) Time Warner and Sony shall use their reasonable efforts to cause to be delivered to CDnow a letter of Ernst & Young LLP, Columbia House's independent auditors, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to CDnow, in form and substance reasonably satisfactory to CDnow and customary in scope and substance for comfort letters delivered by independent public accountants in connection with registration statements similar to the Form S-4.
(g) Time Warner and Sony shall use their reasonable efforts to cause to be delivered to Holdco as soon as practicable following the date of this Agreement combined financial statements for MCo, VCo, Columbia House, Columbia House Mexico and Columbia House Canada that comply with the requirements of Items 14(e), (f) and (g) of Form S-4 under the Securities Act, to be included in the Proxy Statement and the Form S-4.
Appears in 3 contracts
Sources: Merger Agreement (Time Warner Inc/), Merger Agreement (Cdnow Inc/Pa), Merger Agreement (Time Warner Inc/)
Additional Agreements. SECTION 5.01 Conduct Section 6.01 Preparation of Business Prior to the ClosingForm S-4 and the Joint Proxy Statement/Prospectus; Stockholders Meeting.
(a) Parent and RodeoAs soon as practicable following the date of this Agreement, Inc. covenant and agree that, between but in any event within twenty (20) Business Days following the date of this Agreement (to the extent practicable), Parent and the time Company shall jointly prepare and cause to be filed with the SEC the Joint Proxy Statement/Prospectus in preliminary form and Parent shall prepare (with the cooperation of the ClosingCompany) and file with the SEC the Form S-4, except in which the Joint Proxy Statement/Prospectus will be included as set forth in Section 5.01 a prospectus, and each of the Disclosure Letter or Company and Parent shall cooperate with each other and use reasonable best efforts to respond as contemplated by promptly as practicable to any other provision comments of the SEC with respect thereto; provided, that consistent with the foregoing, Parent and the Company shall use their good faith efforts to make the initial filing of the Form S-4 within ten (10) Business Days following the date of this Agreement, unless it being understood and agreed that the Buyer shall otherwise consent in writing, which consent failure to make such filing within such ten (10) Business Day period shall not be unreasonably withheld or delayed:
(i) the businesses deemed to be a breach of this Agreement for any purpose. Each of the Company and Parent shall cooperate with each other and use reasonable best efforts to have the Company Subsidiaries shall be conducted only in, and Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Parent shall use reasonable best efforts to preserve substantially intact their cause the Joint Proxy Statement/Prospectus to be mailed to the Company’s stockholders and the Parent’s stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business organization, in any jurisdiction in which it is not now so qualified) required to keep available be taken under any applicable state securities laws in connection with the services issuance of Parent Common Stock in the current employees of Rodeo, Inc. Merger and to preserve under the current relationships of Company Plans and the Company shall furnish all information concerning the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) holders of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other Common Stock and rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions Common Stock pursuant to the terms Company Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the Company Partnership Agreement;
(iv) other than in the case receipt of any direct comments from the SEC or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance its staff and of any request by the SEC or its staff for amendments or supplements to the Joint Proxy Statement/Prospectus or the Form S-4 or for additional information and shall supply each other Units with copies of all correspondence between such party or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company SubsidiaryRepresentatives, on the one hand, and any of their respective officers, directors, unitholders, owners the SEC or Affiliatesits staff, on the other hand, which if entered into with respect to the Joint Proxy Statement/Prospectus, the Form S-4 or the Merger. Each party shall give each other party an opportunity to participate in any discussions or meetings such party has with the SEC in connection with the Joint Proxy Statement/Prospectus, the Form S-4 or the Merger. Notwithstanding the foregoing, before filing the Form S-4 (or any amendment or supplement thereto) or mailing the Joint Proxy Statement/Prospectus (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each of Parent and the Company (i) shall provide the other a reasonable opportunity to review and comment on such document or response (including the proposed final version of such document or response), (ii) shall include in such document or response all comments reasonably proposed by the other and (iii) shall not file or mail such document or respond to the SEC prior to receiving the date hereof would approval of the other (such approval not to be unreasonably withheld, conditioned or delayed). Each of Parent and the Company shall advise the other, promptly after receipt of notice thereof, of the time of effectiveness of the Form S-4, the issuance of any stop order relating thereto or the suspension of the qualification of the Parent Common Stock included in the Merger Consideration for offering or sale in any jurisdiction, and each of Parent and the Company shall use all reasonable efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Each of Parent and the Company shall also take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be disclosed taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or “blue sky” laws and the rules and regulations thereunder in connection with the Merger and the Share Issuance.
(b) If before the Effective Time, any event occurs with respect to the Company, or any change occurs with respect to other information supplied by the Company for inclusion in the Joint Proxy Statement/Prospectus or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement/Prospectus or the Form S-4, the Company shall promptly notify Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement/Prospectus and Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the Company’s stockholders.
(c) If before the Effective Time, any event occurs with respect to Parent or any Parent Subsidiary, or change occurs with respect to other information supplied by Parent for inclusion in the Joint Proxy Statement/Prospectus or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement/Prospectus or the Form S-4, Parent shall promptly notify the Company of such event, and Parent and the Company shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 and, as required by Law, in disseminating the information contained in such amendment or supplement to the Company’s stockholders.
(d) The Company shall, as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its shareholders (including any adjournment, postponement or other delay thereof, the “Company Stockholders Meeting”) for the purpose of, among other things, seeking the Company Stockholder Approval. The Company shall use reasonable best efforts to: (x) cause the Joint Proxy Statement/Prospectus to be mailed to the Company’s shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act; (y) solicit from the holders of Company Common Stock proxies in favor of the adoption of this Agreement and approval of the Merger; and (z) take all other actions necessary or advisable to secure the vote or consent of the holders of Company Common Stock required by applicable Law to obtain such approval. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 3.20;6.01(d) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal or (ii) the withdrawal or modification by the Company Board of its approval or recommendation of this Agreement or the Merger.
(xixe) materially alter Parent shall, as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its shareholders (through mergerincluding any adjournment, liquidationpostponement or other delay thereof, reorganizationthe “Parent Stockholders Meeting”) for the purpose of, restructuringamong other things, conversion seeking from the holders of Parent Common Stock proxies in favor of the approval of the Share Issuance. Parent shall use reasonable best efforts to: (x) cause the Joint Proxy Statement/Prospectus to be mailed to Parent’s shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act; (y) solicit from the holders of Parent Common Stock proxies in favor of the Share Issuance; and (z) take all other actions necessary or advisable to secure the vote or consent of the holders of Parent Common Stock required by applicable Law to obtain such approval.
(f) Notwithstanding anything to the contrary in any other fashionthis Agreement, the Company will be permitted to postpone or adjourn the Company Stockholders Meeting if (i) there are holders of insufficient shares of the Company Common Stock present or represented by proxy at the Company Stockholders Meeting to constitute a quorum at the Company Stockholders Meeting; (ii) the corporate structure Company is required to postpone or ownership adjourn the Company Stockholders Meeting by applicable Law, order or a request from the SEC; or (iii) the Company Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law to postpone or adjourn the Company Stockholders Meeting (including, if the Company Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law) in order to give the stockholders of the Company sufficient time to evaluate any information or disclosure that the Company has sent to the stockholders of the Company or any otherwise made available to the stockholders of the Company Subsidiary other than as contemplated by issuing a press release, filing materials with the SEC or otherwise, in each case in accordance with the terms of this Agreement; or.
(xxg) enter into any contractNotwithstanding anything to the contrary in this Agreement, agreement, commitment Parent will be permitted to postpone or arrangement to do any adjourn the Parent Stockholders Meeting if (i) there are holders of insufficient shares of the foregoingParent Common Stock present or represented by proxy at the Parent Stockholders Meeting to constitute a quorum at the Parent Stockholders Meeting; (ii) Parent is required to postpone or adjourn the Parent Stockholders Meeting by applicable Law, order or a request from the SEC; or (iii) the Parent Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law to postpone or adjourn the Parent Stockholders Meeting (including, if the Parent Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law) in order to give the stockholders of Parent sufficient time to evaluate any information or disclosure that Parent has sent to the stockholders of Parent or otherwise made available to the stockholders of Parent by issuing a press release, filing materials with the SEC or otherwise, in each case in accordance with the terms of this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Applied Molecular Transport Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.)
Additional Agreements. SECTION 5.01 Conduct 6.1 Preparation of Business Prior to the ClosingProxy Statement; Company Stockholders Meeting; Merger without a Company Stockholders Meeting.
(a) As soon as practicable following the acceptance for payment of and payment for shares of Company Common Stock by Sub in the Offer, the Company and Parent shall prepare and file with the SEC the Proxy Statement. The Company shall use its best efforts to respond to all SEC comments with respect to the Proxy Statement and to cause the Proxy Statement to be mailed to the Company's stockholders at the earliest practicable date. The Company, Parent and RodeoSub, Inc. covenant shall take all reasonable actions necessary or advisable to cause the Merger to be approved by shareholders and agree thatto effect the Merger.
(b) The Company will, between as soon as practicable following the date Proxy Trigger Date, duly call, give notice of, convene and hold the Company Stockholders Meeting for the purpose of approving this Agreement and the transactions contemplated hereby. At the Company Stockholders Meeting, Parent shall cause all of the shares of Company Common Stock then owned by Parent and Sub and any of their Subsidiaries or affiliates to be voted in favor of the Merger.
(c) Notwithstanding the foregoing clauses (a) and (b), in the event that Parent or any other Subsidiary of Parent shall acquire at least 90% of the outstanding shares of Company Common Stock in the Offer, the parties hereto agree, at the request of Sub, to take all necessary and appropriate action to cause the Merger to become effective, as soon as practicable after the expiration of the Offer, without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.
(d) Parent shall (i) cause Sub promptly to submit this Agreement and the transactions contemplated hereby for approval and adoption by its parent by written consent of sole stockholder; (ii) cause the shares of capital stock of Sub to be voted for adoption and approval of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as transactions contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company hereby; and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company cause to be taken all additional actions necessary for Sub to adopt and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of approve this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoinghereby.
Appears in 3 contracts
Sources: Merger Agreement (Hadco Acquisition Corp Ii), Merger Agreement (Continental Circuits Corp), Merger Agreement (Hadco Acquisition Corp Ii)
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement/Prospectus; Company Shareholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement, the Company and Bethlehem shall prepare and file with the SEC the Proxy Statement/Prospectus and Bethlehem shall prepare and file with the SEC the Form S-4, in which the Proxy Statement/Prospectus will be included as a prospectus. Each of the Company and Bethlehem shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all reasonable efforts to cause the Proxy Statement/Prospectus to be mailed to the Company's shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Bethlehem shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Bethlehem Common Stock in connection with the Merger and the Company shall furnish all information concerning the Company and the holders of the Company Common Stock as may be reasonably requested in connection with any such action.
(b) Subject to the fiduciary duties of the directors under applicable law, the Company will, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Company Shareholders Meeting") for the purpose of obtaining the Company Shareholder Approval. Subject to the fiduciary duties of the directors under applicable law, the Company will, through its Board of Directors, recommend to its shareholders the adoption of this Agreement and the time approval of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as transactions contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practicehereby.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Bethlehem Steel Corp /De/), Merger Agreement (Lukens Inc)
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to the ClosingForm F-4 and the Proxy Statement; Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, Parent and the time Company shall prepare and file with the SEC the Proxy Statement and Parent and the Company shall prepare and Parent shall file with the SEC the Form F-4, in which the Proxy Statement will be included as a prospectus. Parent shall use all reasonable efforts to have the Form F-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form F-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the Closingissuance of Parent Shares in the Merger, except as set forth in Section 5.01 of and the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of furnish all information concerning the Company and the holders of Company Subsidiaries shall Common Stock as may be conducted only in, reasonably requested in connection with any such action and the Company preparation, filing and distribution of the Company Subsidiaries shall not take any action except inProxy Statement. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the ordinary course of business;
(ii) Form F-4 will be made by Parent, or the Company Proxy Statement will be made by the Company, without providing the other party a reasonable opportunity to review and comment thereon. Parent will advise the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organizationCompany, to keep available the services promptly after it receives notice thereof, of the current employees time when the Form F-4 has become effective or any supplement or amendment has been filed, the issuance of Rodeoany stop order, Inc. and to preserve the current relationships suspension of the qualification of the Parent Shares issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form F-4 or comments thereon and responses thereto or requests by the SEC for additional information. The Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Proxy Statement or comments thereon and responses thereto or requests by the Company Subsidiaries with customers, contractholders and other Persons with whom SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any Company Subsidiary has significant business relations;
(iii) of their respective affiliates, officers or directors, should be discovered by the Company and or Parent which should be set forth in an amendment or supplement to any of the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) Form F-4 or the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks Proxy Statement, so that any of such types documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and in an appropriate amendment or supplement describing such amounts as are consistent information shall be promptly filed with past practicethe SEC and, to the extent required by law, disseminated to the stockholders of the Company.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the The Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between as soon as practicable following the date of this Agreement, establish a record date (which will be as soon as practicable following the date of this Agreement) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") solely for the purpose of obtaining the Stockholder Approval. The Company shall cause the Stockholders Meeting to be held as promptly as practicable after the date of this Agreement. Subject to Section 4.02(b)(i), the Company shall, through its Board of Directors, recommend to its stockholders that they adopt this Agreement and shall include such recommendation in the Closing, directly or indirectly do, or propose to do, any Proxy Statement. Without limiting the generality of the followingforegoing, without the prior written consent of Buyer, which consent Company agrees that its obligations pursuant to this Section 5.01(b) shall not be unreasonably withheld or delayed:
affected by (i) amendthe commencement, propose public proposal, public disclosure or communication to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
any other person of any Takeover Proposal or (ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, withdrawal or authorize modification by the issuance, sale, pledge, disposition, grant or Encumbrance Board of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) Directors of the Company or any Company Subsidiary committee thereof of any class, such Board of Directors' or any options, warrants, convertible securities such committee's approval or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) recommendation of the Company Merger or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Vivendi), Merger Agreement (Mp3 Com Inc)
Additional Agreements. SECTION Section 5.01 Conduct Preparation of Business Prior to the ClosingForm S-4 and the Joint Proxy Statement; Shareholders Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, Cinergy and Duke shall prepare and file with the SEC the Joint Proxy Statement and Cinergy, Duke and the time Company shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included. Each of Cinergy, Duke and the Company shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Cinergy will use its reasonable best efforts to cause the Joint Proxy Statement to be mailed to Cinergy's shareholders, and Duke will use its reasonable best efforts to cause the Joint Proxy Statement to be mailed to Duke's shareholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Each party hereto shall also take any action required to be taken under any applicable state or provincial securities laws in connection with the issuance of Company Common Stock in the Mergers and each party shall furnish all information concerning itself and its shareholders as may be reasonably requested in connection with any such action. Each party will advise the others, promptly after it receives notice thereof, of the Closingtime when the Form S-4 has become effective or any supplement or amendment has been filed, except the issuance of any stop order, the suspension of the qualification of the Company Common Stock issuable in connection with the Mergers for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If prior to the Effective Time any event occurs with respect to Cinergy, Duke or any subsidiary of Cinergy or Duke, respectively, or any change occurs with respect to information supplied by or on behalf of Cinergy or Duke, respectively, for inclusion in the Joint Proxy Statement or the Form S-4 that, in each case, is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement or the Form S-4, Cinergy or Duke, as applicable, shall promptly notify the other and the Company of such event, and Cinergy or Duke, as applicable, shall cooperate with the Company in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement and the Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to Cinergy's shareholders and to Duke's shareholders.
(b) Cinergy shall, as soon as reasonably practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Cinergy Shareholders Meeting") for the purpose of obtaining the Cinergy Shareholder Approval. Without limiting the generality of the foregoing, Cinergy agrees that its obligations pursuant to the first sentence of this Section 5.01(b) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to Cinergy of any Cinergy Takeover Proposal, (ii) the withdrawal or modification by the Board of Directors of Cinergy of its approval or recommendation of this Agreement, the Cinergy Merger or the other transactions contemplated hereby, or (iii) the approval or recommendation of any Cinergy Superior Proposal. Notwithstanding any of the events set forth in clauses (i), (ii) and (iii) of the immediately preceding sentence, in the event Cinergy fulfills its obligations pursuant to this Section 5.01(b) and the Cinergy Shareholder Approval is not obtained at the Cinergy Shareholders Meeting, Duke shall not thereafter have the right to terminate this Agreement pursuant to Sections 7.01(h)(i) as a result of the Board of Directors of Cinergy (or any committee thereof) having, pursuant to Section 4.03(b)(ii), withdrawn or modified, or proposed publicly to withdraw or modify, the approval or recommendation by such Board of Directors of this Agreement or the Cinergy Merger, provided Duke shall retain all other rights to terminate this Agreement set forth in Section 5.01 of 7.01.
(c) Duke shall, as soon as reasonably practicable following the Disclosure Letter or as contemplated by any other provision date of this Agreement, unless duly call, give notice of, convene and hold a meeting of its shareholders (the Buyer shall otherwise consent in writing"Duke Shareholders Meeting") for the purpose of obtaining the Duke Shareholder Approval. Without limiting the generality of the foregoing, which consent Duke agrees that its obligations pursuant to the first sentence of this Section 5.01(c) shall not be unreasonably withheld or delayed:
affected by (i) the businesses commencement, public proposal, public disclosure or communication to Duke of the Company and the Company Subsidiaries shall be conducted only inany Duke Takeover Proposal, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and withdrawal or modification by the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organizationBoard of Directors of Duke of its approval or recommendation of this Agreement, to keep available the services of Duke Merger or the current employees of Rodeoother transactions contemplated hereby, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company approval or recommendation of any Duke Superior Proposal. Notwithstanding any of the events set forth in clauses (i), (ii) and (iii) of the immediately preceding sentence, in the event Duke fulfills its obligations pursuant to this Section 5.01(c) and the Company Subsidiaries Duke Shareholder Approval is not obtained at the Duke Shareholders Meeting, Cinergy shall comply not thereafter have the right to terminate this Agreement pursuant to Sections 7.01(g)(i) as a result of the Board of Directors of Duke (or any committee thereof) having, pursuant to Section 4.04(b)(ii), withdrawn or modified, or proposed publicly to withdraw or modify, the approval or recommendation by such Board of Directors of this Agreement or the Duke Merger, provided Cinergy shall retain all other rights to terminate this Agreement set forth in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; andSection 7.01.
(ivd) the Company Cinergy and the Company Subsidiaries shall Duke will use their reasonable best efforts to continue in force with good hold the Duke Shareholders Meeting and responsible insurance companies adequate insurance covering risks of such types the Cinergy Shareholders Meeting on the same date and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except soon as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between practicable after the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Cinergy Corp), Merger Agreement (Duke Energy Corp)
Additional Agreements. SECTION 5.01 Conduct 5.1 Preparation of Business Prior to the ClosingForm S-4, Proxy Statement and Form 10; Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As promptly as practicable following the date of this Agreement Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, the Proxy Statement and the Form 10. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4, in which the Proxy Statement shall be included, declared effective under the Securities Act and the Form 10 declared effective under the Exchange Act as promptly as practicable after such filing. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to its stockholders as promptly as practicable after the Form S-4 is declared effective; provided, that the Company may elect to postpone the mailing of the Proxy Statement to a date that is no later than at least 20 business days prior to the date Parent informs the Company that the DevCo. Distribution is reasonably capable of being completed.
(b) Each of the Company and Parent covenants that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Proxy Statement will, at the date it is first mailed to the stockholders of the Company, or at the time of the ClosingCompany Stockholders Meeting, except as set forth contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in Section 5.01 order to make the statements therein, in light of the Disclosure Letter or as contemplated by any other provision of this Agreementcircumstances under which they are made, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company misleading. The Proxy Statement and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts Form S-4 will comply as to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply form in all material respects with their respective obligations under all material contracts binding upon them the requirements of the Exchange Act and the Securities Act, as such obligations become due and with their respective obligations under applicable Law; and
applicable. Notwithstanding the foregoing, (ivi) no representation or covenant is made by the Company with respect to statements made or incorporated by reference based on information supplied in writing by Parent specifically for inclusion or incorporation by reference in the Form S-4 or Proxy Statement and (ii) no representation or covenant is made by Parent with respect to statements made or incorporated by reference based on information supplied in writing by the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated for inclusion or incorporation by this Agreement, or as reflected reference in the Company SEC Reports filed Form S-4 or the Proxy Statement. If at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent Effective Time there shall not be unreasonably withheld or delayed:
occur (i) amend, propose any event with respect to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any of its subsidiaries, or with respect to other information supplied by Company Subsidiary for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any class, comments from the SEC or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest its staff or any other ownership interests (including, without limitation, appropriate government official and of any phantom interest, general partnership interest requests by the SEC or limited partnership interest) its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu ofits representatives, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest Parent or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or propertiesrepresentatives, other than transactions that are in as the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiarycase may be, on the one hand, and the SEC or its staff or any of their respective officers, directors, unitholders, owners or Affiliatesother appropriate government official, on the other hand, which if entered into prior with respect thereto. The Company and Parent shall use their respective reasonable efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4, the Proxy Statement and the Form 10, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval; provided, that the Company may elect to postpone the Company Stockholders Meeting to a date hereof would be required to be disclosed pursuant that is no later than 35 business days after the date of mailing of the Proxy Statement in accordance with Section 5.1(a). Subject to Section 3.20;
(xix) materially alter (through merger4.3, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership Board of Directors of the Company or any Company Subsidiary other than as contemplated by shall recommend to the Company's stockholders the approval and adoption of this Agreement; or
, the Merger and the other transactions contemplated hereby (xx) enter into any contract, agreement, commitment or arrangement to do any the "Company Recommendation"). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation unless this Agreement has been terminated.
(e) The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Cendant Corp), Merger Agreement (Cendant Corp)
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to the Closing.
(a) Parent Form S-4, the Joint Proxy Statement and Rodeo, Inc. covenant and agree that, between the Schedule 13E-3. As soon as practicable following the date of this Agreement Agreement, the Company and Parent shall (a) prepare and file with the SEC the Joint Proxy Statement and the time Schedule 13E-3 and (b) Parent shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of the ClosingCompany and Parent shall and shall cause their respective counsel, except accountants and other advisors to use all reasonable best efforts to have the Form S-4 declared effective under the Securities Act as set forth promptly as practicable after such filing (including causing accountants to deliver necessary or required instruments such as opinions, consents and certifications) and to keep the Form S-4 effective for so long as necessary to complete the Merger. The Company will cause (and will make provision that its successor cause) the Joint Proxy Statement to be mailed to the Company’s stockholders for purposes of approving the Consolidation and the Merger, and Parent will cause the Joint Proxy Statement to be mailed to Parent’s stockholders, in Section 5.01 each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) reasonably required to be taken under any applicable state securities laws in connection with the issuance of Parent Preferred Stock in the Merger, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested by Parent in connection with any such action and the preparation, filing and distribution of the Disclosure Letter Joint Proxy Statement and the Form S-4. The parties shall cooperate and notify each other promptly of the receipt of any comments from the SEC or as the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Joint Proxy Statement, the Form S-4 or the Schedule 13E-3 or for additional information, and shall supply each other with copies of all correspondence between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Joint Proxy Statement, the Form S-4, the Schedule 13E-3, the Merger or the other transactions contemplated by any this Agreement or the Voting Agreement. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing, or amendment or supplement to, the Joint Proxy Statement or the Schedule 13E-3 will be made by Parent or the Company, in each case (i) without providing the other provision party a reasonable opportunity to review and comment thereon or (ii) without the approval of this Agreement, unless both Parent and the Buyer shall otherwise consent in writingCompany, which consent approval shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in; provided, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwisethat, with respect to any documents filed by a party hereto that are incorporated by reference in the Form S-4 or Joint Proxy Statement, this right of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant approval shall apply only with respect to information relating to the terms other party or its business, financial condition or results of operations or the Company Partnership Agreement;
(iv) other than in Merger. If at any time prior to the case of Effective Time any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of information relating to the Company or any Company Subsidiary in respect of, in lieu ofParent, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets their respective Affiliates, directors or propertiesofficers, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to should be conducted discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4, the Joint Proxy Statement or the Schedule 13E-3 (iii) ancillary including the consummation of the Company Reorganization or the Consolidation), so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the Company's current businessextent required by law, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable disseminated to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in stockholders of Parent and the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee stockholders of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (National Health Realty Inc), Merger Agreement (National Healthcare Corp)
Additional Agreements. SECTION 5.01 Conduct 5.1 Preparation of Business Prior to the Closing.Permit Application/Information Statement. -------------------------------------------------------
(a) Parent As soon as practicable after the execution of this Agreement, Digital shall prepare, with the cooperation of Agile, an Information Statement for the Shareholders to approve this Agreement, the Certificate of Merger and Rodeothe transactions contemplated hereby and thereby. The Information Statement shall constitute a disclosure document for the offer and issuance of the shares of Agile Common Stock to be received by the holders of Digital Common Stock in the Merger. Agile and Digital shall each use reasonable commercial efforts to cause the Information Statement to comply with applicable federal and state securities laws requirements. Each of Agile and Digital agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, Inc. covenant in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Information Statement, or in any amendments or supplements thereto, and agree thatto cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Information Statement. Digital will promptly advise Agile, between and Agile will promptly advise Digital, in writing if at any time prior to the date Effective Time either Digital or Agile shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Information Statement in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable law. The Information Statement shall contain the recommendation of the Board of Directors of Digital that the Digital shareholders approve the Merger and this Agreement and the time conclusion of the Closing, except as set forth in Section 5.01 Board of Directors that the terms and conditions of the Disclosure Letter or as contemplated by any other provision of this AgreementMerger are fair and reasonable to the Shareholders. Anything to the contrary contained herein notwithstanding, unless the Buyer shall otherwise consent in writing, which consent Digital shall not be unreasonably withheld include in the Information Statement any information with respect to Agile or delayed:
(i) its affiliates or associates, the businesses form and content of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries which information shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts have been approved by Agile prior to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceinclusion.
(b) By way As soon as practicable after the execution of amplification and not limitation, except as contemplated by this Agreement, or as reflected Agile shall prepare, with the cooperation of Digital, the Permit Application. Agile and Digital shall each use reasonable commercial efforts to cause the Permit Application to comply with the requirements of applicable federal and state laws. Each of Agile and Digital agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in the Company SEC Reports filed reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Permit Application, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Permit Application. Digital will promptly advise Agile, and Agile will promptly advise Digital, in writing if at any time prior to the date hereof Effective Time either Digital or Section 5.01 Agile shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Disclosure LetterPermit Application in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable law. Anything to the contrary contained herein notwithstanding, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent Agile shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or include in the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of Permit Application any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, information with respect to any of the UnitsDigital or its affiliates or associates, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends form and other distributions content of which information shall not have been approved by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into Digital prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingsuch inclusion.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Agile Software Corp), Merger Agreement (Agile Software Corp)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing.
(a) Parent and Rodeo, Inc. covenant and agree that, between the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) During the businesses Standstill Period, AK and the MRMP Stockholders agree that they will (A) be present for quorum purposes at any annual or special meeting of the Company’s stockholders, and (B) vote or cause to be voted (including in any action by written consent) all shares of the Company Common Stock beneficially owned, or deemed to be beneficially owned (as determined under Rule 13d-3 promulgated under the Exchange Act), and entitled to vote as of the record date, by AK and the Company Subsidiaries shall be conducted only in, and MRMP Stockholders in favor of the Company and slate of directors recommended by the Company Subsidiaries shall not take any action except in, the ordinary course of business;Board.
(ii) From the Signing Date and during the Standstill Period, AK and the MRMP Stockholders will grant the Company and an irrevocable proxy to vote such shares in accordance with the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;voting obligations set forth in this Term Sheet.
(iii) During the Standstill Period, the MRMP Stockholders shall have the right to designate up to two (2) persons, inclusive initially of DW and LN, to serve as a director on the Board (together, the “Sherwood Designees,” and each, a “Sherwood Designee”); provided, that, such Sherwood Designee shall, (A) qualify as an “independent director” under the applicable rules of the NYSE and the rules and regulations of the SEC and (B) satisfy the guidelines and policies of the Company and with respect to service on the Company Subsidiaries shall comply in Board applicable to all material respects with their respective obligations under all material contracts binding upon them as non-management directors; provided, further, that only one (1) such obligations become due and with their respective obligations under applicable Law; andSherwood Designee may be an Affiliate of the MRMP Stockholders.
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitationIf, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed at any time prior to the date hereof or Section 5.01 expiration of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to doStandstill Period, any of the followingSherwood Designees are unable or unwilling to serve as a director, without the prior written consent MRMP Stockholders, for so long as they maintain at least 50% of Buyertheir current ownership of Common Stock as of the Signing Date, which consent shall not be unreasonably withheld or delayed:
(i) amend, have the right to propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issuea replacement director with relevant financial and business experience, sell, transfer, pledge, dispose of, grant, encumber, amend who shall be subject to the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) reasonable approval of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;Board.
(v) redeemIf, purchase or otherwise acquire, directly or indirectly, at any Units, Incentive Distribution Rights or any other ownership interests time prior to the expiration of the Standstill Period, AK is unable or unwilling to serve as a director, AK, for so long as him and his affiliates maintain at least 50% of their current ownership of Common Stock as of the date of the Term Sheet, shall have the right to propose to the Company or any Company Subsidiary or rightsreplacement director for himself with relevant financial and business experience, warrants or options who shall be subject to acquire any Units, Incentive Distribution Rights or other the reasonable approval of the Board. ▇▇ further agrees that he will not stand for re-election if his current ownership interests;of Common Stock (excluding his Affiliates) falls below 5.0%.
(vi) acquire or agree to acquire (includingIf, without limitation, by merger, consolidation or acquisition of stock or assets) at any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into time prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership expiration of the Company Standstill Period, JH or any Company Subsidiary other than KG is unable or unwilling to serve as contemplated by this Agreement; or
(xx) enter into any contracta director, agreementthe remaining Board will identify a mutually acceptable qualified fifth board candidate. Each of AK and the MRMP Stockholders shall have the ability to recommend candidates to replace JH or KG, commitment or arrangement subject to do any the final approval of the foregoingBoard.
Appears in 2 contracts
Sources: Cooperation and Support Binding Term Sheet (Barnwell Industries Inc), Cooperation and Support Binding Term Sheet (Kinzler Alexander C)
Additional Agreements. SECTION 5.01 Conduct Section 6.01 Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; Company Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company shall otherwise consent prepare and file with the SEC the Proxy Statement and Parent shall prepare and Parent shall file with the SEC the Form S-4, in writing, which consent shall not the Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus. Each of the Company and Parent will respond promptly to any comments from the SEC or the staff of the SEC on the Proxy Statement or the Form S-4. Each of the Company Subsidiaries and Parent shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and maintain the Form S-4's effectiveness for so long as necessary to consummate the Merger. The Company shall use its reasonable best efforts to cause the Proxy Statement to be conducted only inmailed to the stockholders of the Company as promptly as practicable after the Form S-4 is declared effective under the Securities Act (but in no event later than three (3) business days after the date the Form S-4 is declared effective). Parent shall also take any action required to be taken under any applicable state securities Laws in connection with the issuance of shares of Parent Common Stock in the Merger, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) furnish all information concerning the Company and the holders of shares of Company Subsidiaries shall use Common Stock as may be reasonably requested by Parent in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will be made by the Company, without providing the other party and its counsel a reasonable best efforts opportunity to preserve substantially intact their business organization, review and comment thereon. If at any time prior to keep available the services of the current employees of Rodeo, Inc. and Effective Time any information relating to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any classParent, or any optionsof their respective Affiliates, warrantsdirectors or officers, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to should be conducted discovered by the Company or (iii) ancillary Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the Company's current businessextent required by Law, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable disseminated to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee stockholders of the Company, Seller . The parties shall notify each other promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of (i) all correspondence between it or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company SubsidiaryRepresentatives, on the one hand, and any the SEC or the staff of their respective officers, directors, unitholders, owners or Affiliatesthe SEC, on the other hand, which if entered into prior with respect to the Proxy Statement, the Form S-4 or the Merger and (ii) all orders of the SEC relating to the Form S-4.
(b) The Company shall, as soon as practicable following the date hereof would be required to be disclosed pursuant of this Agreement, establish a record date for and promptly take any and all actions in connection therewith, and as soon as practicable after the Form S-4 is declared effective, duly call, give notice of, convene and hold, a meeting of its stockholders (the "Company Stockholders Meeting") solely for the purpose of obtaining the Company Stockholder Approval. Subject to Section 3.20;
(xix) materially alter (through merger5.02(b), liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any shall, through the Company Subsidiary Board, recommend to its stockholders adoption of this Agreement, the Merger and the other than as transactions contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any . Without limiting the generality of the foregoing, the Company's obligations pursuant to the first sentence of this Section 6.01(b) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal or (ii) any Company Adverse Recommendation Change.
Appears in 2 contracts
Sources: Merger Agreement (Unitedhealth Group Inc), Merger Agreement (Pacificare Health Systems Inc /De/)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing6.01. PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company and Parent shall otherwise consent prepare and file with the SEC a joint proxy statement (the "Joint Proxy Statement") in writingpreliminary form and Parent shall prepare and file with the SEC the Form S-4, in which consent shall not the Joint Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus, and each of the Company and Parent shall use its reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Each of the Company Subsidiaries and Parent shall use its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be conducted only in, taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Stock Plan and the Company shall furnish all information concerning the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Plan as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Joint Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such or any of its representatives, on the one hand, and the Company Subsidiaries SEC or its staff, on the other hand, with customersrespect to the Joint Proxy Statement, contractholders and other Persons with whom the Company Form S-4 or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceMerger.
(b) By way of amplification and not limitationIf, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) receipt of the Company Stockholder Approval or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitationParent Stockholder Approval, any phantom interest, general partnership interest or limited partnership interest) of event occurs with respect to the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, change occurs with respect to any of other information supplied by the UnitsCompany for inclusion in the Joint Proxy Statement or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Incentive Distribution RightsJoint Proxy Statement or the Form S-4, the GP Interest Company shall promptly notify Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant supplement to the terms Joint Proxy Statement and the Form S-4 and, as required by Law, in disseminating the information contained in such amendment or supplement to the Company's stockholders.
(c) If, at any time prior to the receipt of the Company Partnership Agreement;
(iv) Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to Parent or any Parent Subsidiary, or change occurs with respect to other than information supplied by Parent for inclusion in the case of any direct Joint Proxy Statement or indirect wholly-owned Company Subsidiarythe Form S-4, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary which is required to be described in respect of, in lieu an amendment of, or in substitution of the Unitsa supplement to, the Incentive Distribution RightsJoint Proxy Statement or the Form S-4, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of Parent shall promptly notify the Company or any of such event, and Parent and the Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 shall cooperate in the aggregate for all transactions pursuant prompt filing with the SEC of any necessary amendment or supplement to this subsection (vi);
(vii) except for Permitted Encumbrances or the Joint Proxy Statement and the Form S-4 and, as required by any Material ContractLaw, leasein disseminating the information contained in such amendment or supplement to the Company's stockholders.
(d) The Company shall, licenseas soon as practicable following the date of this Agreement, mortgage or otherwise encumber or subject to any Encumbranceduly call, or agree to encumber or subject to any Encumbrancegive notice of, any convene and hold a meeting of its assets or properties, other than transactions that are in stockholders (the ordinary course "Company Stockholders Meeting") for the purpose of business and not material seeking the Company Stockholder Approval. The Company shall use its reasonable efforts to cause the Joint Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the date of this Agreement. The Company and shall, through the Company Subsidiaries taken as a whole;
(viii) Board, recommend to its stockholders that they give the Company Stockholder Approval, except as required by any Material Contract to the extent that the Company Board shall have withdrawn or in modified its approval or recommendation of this Agreement or the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than Merger as permitted by the terms last sentence of Section 5.02(b). Without limiting the generality of the Credit Agreements;
(xforegoing, the Company agrees that its obligations pursuant to the first sentence of this Section 6.01(d) enter, to a material extent, any line of business that is shall not (i) currently conducted, (ii) currently contemplated to be conducted affected by the Company commencement, public proposal, public disclosure or (iii) ancillary communication to the Company's current businessCompany of any Company Takeover Proposal; it being understood and agreed among Parent, or commence business operations Sub and the Company that in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable event that, prior to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee date of the CompanyCompany Stockholders Meeting, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company withdraws or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge modifies its approval or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than recommendation of the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or Merger and this Agreement in accordance with the provisions last sentence of Section 5.02(b), then for purposes of the first sentence of this Section 5.01;
6.01(d), the term "Company Stockholder Approval" shall mean both (xivi) settle the approval of this Agreement by a majority of the voting power of the holders of the outstanding Company Common Stock and (ii) the approval of this Agreement by a majority of the voting power of the holders of the outstanding Company Common Stock present and duly voted (in person or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xvby proxy) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from at the Company or its Subsidiaries Stockholders Meeting, exclusive of those votes taken in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership respect of the shares of Company or any Company Subsidiary other than as contemplated Common Stock held by this Agreement; or
(xx) enter into any contractMichael J. Gaughan, agreement, commitment or arrangement to do any of the foregoingJerry Herbst and Franklin Toti.
Appears in 2 contracts
Sources: Merger Agreement (Boyd Gaming Corp), Merger Agreement (Boyd Gaming Corp)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing6.01. PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company and Parent shall otherwise consent prepare and file with the SEC a joint proxy statement (the "Joint Proxy Statement") in writingpreliminary form and Parent shall prepare and file with the SEC the Form S-4, in which consent shall not the Joint Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus, and each of the Company and Parent shall use its reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Each of the Company Subsidiaries and Parent shall use its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be conducted only in, taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Stock Plans and the Company shall furnish all information concerning the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Joint Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such or any of its representatives, on the one hand, and the Company Subsidiaries SEC or its staff, on the other hand, with customersrespect to the Joint Proxy Statement, contractholders and other Persons with whom the Company Form S-4 or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceMerger.
(b) By way of amplification and not limitationIf, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) receipt of the Company Stockholder Approval or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitationParent Stockholder Approval, any phantom interest, general partnership interest or limited partnership interest) of event occurs with respect to the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, change occurs with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions information supplied by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than for inclusion in the case of any direct Joint Proxy Statement or indirect wholly-owned Company Subsidiarythe Form S-4, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary which is required to be described in respect of, in lieu an amendment of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay supplement to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.the
Appears in 2 contracts
Sources: Stockholders Agreement (Boyd Gaming Corp), Stockholders Agreement (Boyd Gaming Corp)
Additional Agreements. SECTION 5.01 Conduct 6.1 Preparation of Business Prior to S-4 and the Closing.
(a) Proxy Statement. Parent and Rodeothe Company will, Inc. covenant as promptly as practicable, jointly prepare and agree that, between file with the date of this Agreement and SEC the time Proxy Statement in connection with the vote of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses stockholders of the Company in respect of the Merger. Parent will, as promptly as practicable, prepare, following receipt of notification from the SEC that it has no further comments on the Proxy Statement, and file with the SEC the S-4 in connection with the registration under the Securities Act of the shares of Parent Common Stock issuable upon conversion of the Shares and the other transactions contemplated hereby. Parent and the Company Subsidiaries shall be conducted only inwill, and the Company will cause their accountants and the Company Subsidiaries shall not take any action except inlawyers to, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue have or cause the S-4 to be declared effective as promptly as practicable after filing with the SEC, including, causing their accountants to deliver necessary or required instruments such as opinions, consents and certificates, and will take any other action required or necessary to be taken under federal or state securities Laws or otherwise in force connection with good the registration process (other than qualifying to do business in any jurisdiction which it is not now so qualified or filing a general consent to service of process in any jurisdiction). The Company and responsible insurance companies adequate insurance covering risks Parent shall, as promptly as practicable after the receipt thereof, provide to the other party copies of any written comments and advise the other party of any oral comments, in respect of the Proxy Statement or the S-4 received from the staff of the SEC. The Company will provide Parent with a reasonable opportunity to review and comment on any amendment or supplement to the Proxy Statement prior to filing with the SEC and will provide Parent with a copy of all such types and in such amounts as are consistent filings with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the SEC. Parent will provide the Company SEC Reports filed with a reasonable opportunity to review and comment on any amendment or supplement on the S-4 prior to filing with SEC and will provide the date hereof or Section 5.01 Company with a copy of all such filings with the SEC. Parent will advise the Company, promptly after it receives notice thereof, of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither time when the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest Form S-4 has become effective or any other ownership interests (including without limitation general and limited partnership interests) of the Company supplement or any Company Subsidiary of any classamendment has been filed, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests stop order, the suspension of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution qualification of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or Parent Common Stock issuable in connection with the transactions described Merger for offering or sale in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangementjurisdiction, or enter into any transaction, between request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. The Company and/or any Company Subsidiary, on will use its reasonable best efforts to cause the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required Proxy Statement to be disclosed pursuant mailed to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) its stockholders at the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingearliest practicable date.
Appears in 2 contracts
Sources: Merger Agreement (Unitrode Corp), Merger Agreement (Texas Instruments Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing.
(a) Parent Section 6.01 Proxy Statement and Rodeo, Inc. covenant and agree that, between Schedule 13E-3. As soon as practicable following the date of this Agreement Agreement, the Company, with the assistance of Parent and Merger Sub, shall prepare a proxy statement relating to the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision authorization and approval of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) Plan of Merger and the businesses Transactions by the shareholders of the Company including a notice convening the Shareholders’ Meeting in accordance with the Company’s memorandum and articles of association (such proxy statement and notice, as amended or supplemented, being referred to herein as the Company Subsidiaries shall be conducted only in, and “Proxy Statement”). Concurrently with the Company and preparation of the Company Subsidiaries shall not take any action except inProxy Statement, the ordinary course of business;
(ii) the Company Company, Parent and the Company Subsidiaries Merger Sub shall jointly prepare a Schedule 13E-3. The Company, Parent and Merger Sub shall use their reasonable efforts to cause the initial Schedule 13E-3 to be filed with the SEC (with the initial Proxy Statement filed as an exhibit) as soon as practicable after the date of this Agreement. Each of the Company, Parent and Merger Sub shall use its reasonable best efforts so that the Schedule 13E-3 will comply as to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply form in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company requirements of the Exchange Act and the Company Subsidiaries rules and regulations promulgated thereunder. Each of the Company, Parent and Merger Sub shall use their its reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior respond promptly to the date hereof or Section 5.01 any comments of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, SEC with respect to any of the Units, Proxy Statement and Schedule 13E-3 and to resolve comments from the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee SEC. Each of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for Parent and Merger Sub shall furnish all information concerning such party to the benefit of any director, officer or employee except others as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or may be reasonably requested in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreementpreparation, enter into, amend, terminate filing and distribution of the Proxy Statement and Schedule 13E-3. The Company shall promptly notify Parent and Merger Sub upon the receipt of any comments from the SEC or waive its staff or any provision of, any agreement request from the SEC or arrangement, its staff for amendments or enter into any transaction, supplements to the Proxy Statement and Schedule 13E-3 and shall provide Parent with copies of all correspondence between the Company and/or any Company Subsidiaryit and its Representatives, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliatesthe SEC and its staff, on the other hand. Prior to filing or mailing the Proxy Statement and Schedule 13E-3 (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, which if entered into the Company (i) shall provide Parent and Merger Sub a reasonable amount of time to review and comment on such document or response and (ii) shall consider in good faith including in such document or response all comments reasonably proposed by Parent and Merger Sub. If at any time prior to the date hereof would Shareholders’ Meeting, any information relating to the Company, Parent, Merger Sub or any of their respective Affiliates, officers or directors, is discovered by the Company, Parent or Merger Sub which should be set forth in an amendment or supplement to the Proxy Statement and Schedule 13E-3 so that (x) the Proxy Statement and Schedule 13E-3 shall not contain any untrue statement of a material fact or omit to state any material fact required to be disclosed pursuant stated therein or necessary in order to Section 3.20;
make the statements therein, in light of the circumstances under which they are made, not misleading, and (xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashiony) the corporate structure or ownership shareholders of the Company are able to make an informed decision on whether or any Company Subsidiary not to attend the Shareholders’ Meeting and how to vote, the party which discovers such information shall promptly notify the other than as contemplated parties hereto and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by this Agreement; or
(xx) enter into any contractapplicable Law, agreement, commitment or arrangement disseminated to do any the shareholders of the foregoingCompany.
Appears in 2 contracts
Sources: Merger Agreement (Country Style Cooking Restaurant Chain Co., Ltd.), Merger Agreement (Country Style Cooking Restaurant Chain Co., Ltd.)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing.5.1 Information Statement and Proxy Statement. -----------------------------------------
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable after the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision execution of this Agreement, unless Company shall prepare, with the Buyer cooperation and reasonable assistance of Parent, and furnish to its shareholders an Information Statement for the shareholders of Company to approve and adopt this Agreement, the Merger and the other transactions contemplated by this Agreement. The Information Statement shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) constitute a disclosure document for the businesses offer and issuance of the shares of Parent Common Stock to be received by the holders of Company Capital Stock in the Merger and a proxy statement for solicitation of shareholder consent to or approval of this Agreement, the Merger and the Company Subsidiaries shall be conducted only inother transactions contemplated hereby, and may be combined with the Proxy Statement as a joint proxy/information statement. Parent and Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall each use its reasonable best efforts to preserve substantially intact their business organizationcause the Information Statement to comply with applicable federal and state securities laws requirements. Each of Parent and Company agrees to provide promptly to the other such information concerning it and its respective affiliates, to keep available directors, officers and securityholders as, in the services reasonable judgment of the current employees of Rodeoother party or its counsel, Inc. may be required or appropriate for inclusion in the Information Statement, or in any amendments or supplements thereto, and to preserve cause its counsel and auditors to cooperate with the current relationships other's counsel and auditors in the preparation of the Information Statement. Company will promptly advise Parent, and Parent will promptly advise Company, in writing if at any time prior to the Effective Time either Company or Parent shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Information Statement in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable law. The Information Statement shall contain the recommendation of the Board of Directors of Company that Company shareholders approve and adopt this Agreement, the Merger and the other transactions contemplated by this Agreement, and the conclusion of the Board of Directors that the terms and conditions of the Merger are fair and reasonable and in the best interests of Company and its shareholders. Anything to the contrary contained herein notwithstanding, Company Subsidiaries shall not include in the Information Statement any information with customersrespect to Parent or its affiliates or associates, contractholders the form and other Persons with whom the Company or any Company Subsidiary has significant business relations;content of which information shall not have been approved by Parent prior to such inclusion.
(iiib) As soon as practicable after the Company execution of this Agreement, Parent shall prepare, with the cooperation of Company, and file with the SEC preliminary proxy materials relating to the Parent Stockholders Meeting and the vote of the stockholders of Parent on the issuance of the Merger Shares pursuant to this Agreement. Parent and Company Subsidiaries shall each use its reasonable best efforts to cause the Proxy Statement to comply in all material respects with their the Exchange Act and all other applicable federal and state securities law requirements. Each of Parent and Company shall, and shall cause its respective obligations under all material contracts binding upon them representatives to, fully cooperate with the other such party and its representatives in the preparation of the Proxy Statement, and shall promptly provide to the other such information concerning it and its respective affiliates, directors, officers and securityholders as the other may reasonably request in connection with the preparation of the Proxy Statement. If at any time prior to the Effective Time Company or Parent shall become aware of any fact, event or circumstance that is required to be set forth in an amendment or supplement to the Proxy Statement, such obligations become due party shall promptly notify the other of such fact, event or circumstance and the other parties shall cooperate with their respective obligations each other in filing with the SEC or any other governmental official and mailing to Parent stockholders such amendment or supplement. The Proxy Statement shall contain the recommendation of the Board of Directors of Parent in favor of the Parent Stockholder Approval; provided, that the Board of Directors of Parent -------- shall have the right to omit, withdraw or modify such recommendation in the event that a Parent Superior Proposal has been made and Parent's Board of Directors has concluded in good faith, after considering applicable state law, on the basis of written advice of outside counsel, that inclusion of such recommendation would not be a proper exercise of the Parent's board of directors' fiduciary duties to Parent's stockholders under applicable Law; and
law. Notwithstanding any such omission, withdrawal or modification, Parent shall convene and hold (ivand shall take all action otherwise required by this Agreement to convene and hold) the Company and Parent Stockholders Meeting. Without limiting the Company Subsidiaries generality of the foregoing, Parent shall use their its reasonable best efforts to continue in force respond promptly to any comments made by the SEC with good respect to the Proxy Statement (including each preliminary version thereof) and responsible insurance companies adequate insurance covering risks to clear the Proxy Statement as promptly as practicable hereafter. As promptly as practicable after SEC clearance of such types the Proxy Statement, Parent shall file with the SEC the definitive Proxy Statement and in such amounts as are consistent with past practicemail or cause to be mailed the Proxy Statement to its stockholders.
(bc) By way As soon as practicable after the execution of amplification and not limitation, except as contemplated by this Agreement, or as reflected Parent shall prepare, with the cooperation of Company, the Permit Application. Parent and Company shall each use commercially reasonable efforts to cause the Permit Application to comply with the requirements of applicable federal and state laws. Each of Parent and Company agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Permit Application, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Permit Application. Company SEC Reports filed will promptly advise Parent, and Parent will promptly advise Company, in writing if at any time prior to the date hereof Effective Time either Company or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance obtain knowledge of any Units, facts that might make it necessary or appropriate to amend or supplement the Incentive Distribution Rights, Permit Application in order to make the GP Interest statements contained or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions incorporated by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions reference therein not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable misleading or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by comply with applicable law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Sandpiper Networks Inc), Agreement and Plan of Reorganization (Digital Island Inc)
Additional Agreements. SECTION 5.01 Conduct 5.1 Preparation of Business Prior to the ClosingProxy Statement and Schedule 13E-3.
(a) Parent The Company shall as promptly as practicable prepare and Rodeofile a proxy or information statement relating to the Stockholders' Meeting (together with all amendments, Inc. covenant supplements and agree thatexhibits thereto, between the date "Proxy Statement") with the SEC and will use its best efforts to respond to the comments of this Agreement the SEC and to cause the Proxy Statement to be mailed to the Company's stockholders at the earliest practical time. The Company shall use its best efforts to obtain from the Financial Advisor an opinion (that shall not at the time of the Closing, except as set forth in Section 5.01 mailing of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless Proxy Statement to the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses stockholders of the Company and be subject to adverse comment by the Company Subsidiaries shall be conducted only in, and SEC) as to the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services fairness of the current employees of Rodeo, Inc. transactions contemplated hereby and to preserve cause the current relationships same to be reproduced and furnished to its stockholders in connection with the Proxy Statement. The Company will notify Levy Acquisition Co. promptly of the Company receipt of any comments from the SEC or its staff and of any request by the Company Subsidiaries SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Levy Acquisition Co. with customers, contractholders and other Persons with whom copies of all correspondence between the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiaryrepresentatives, on the one hand, and any of their respective officers, directors, unitholders, owners the SEC or Affiliatesits staff, on the other hand, which if entered into with respect to the Proxy Statement or the Merger. If at any time prior to the date hereof would Stockholders' Meeting there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company will promptly prepare and mail to its stockholders such an amendment or supplement. The Company will not mail any Proxy Statement, or any amendment or supplement thereto, to which Levy Acquisition Co. reasonably objects. The Company hereby consents to the inclusion in the Proxy Statement of the recommendation of the Board described in Section 5.2, subject to any modification, amendment or withdrawal thereof, and represents that the Independent Advisor has, subject to the terms of its engagement letter with the Company, consented to the inclusion of references to its opinion in the Proxy Statement.
(b) The Company and Levy Acquisition Co. shall together prepare and file a Transaction Statement on Schedule 13E-3 (together with all amendments and exhibits thereto, the "Schedule 13E-3") under the Exchange Act. Levy Acquisition Co. shall furnish all information concerning it, its affiliates and the holders of its capital stock required to be disclosed pursuant included in the Schedule 13E-3 and, after consultation with each other, shall respond promptly to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) comments made by the corporate structure or ownership of SEC with respect to the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingSchedule 13E-3.
Appears in 2 contracts
Sources: Merger Agreement (Levy Richard D), Merger Agreement (Levy Richard D)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.1 RECOMMENDATION; PREPARATION OF PROXY STATEMENT; THE COMPANY STOCKHOLDERS MEETING.
(a) The Company shall, through the Company Board, recommend to its stockholders that they accept the Offer and tender all of their shares of Company Common Stock to Merger Sub and vote in favor of adoption of this Agreement; PROVIDED, HOWEVER, that the Company Board may withdraw or modify such recommendation (and its declaration of the advisability of this Agreement) to the extent that the Company Board determines in good faith to do so consistent with the exercise of its fiduciary duties (after consulting with outside legal counsel and, if appropriate, its outside financial advisor, and other than in connection with a Transaction Proposal) or as permitted under Section 5.4. Except as provided in Section 5.4, if required by the DGCL or the Company's Organizational Documents in order to consummate the Merger, the Company shall, as soon as practicable following the acquisition by Merger Sub of the shares of the Company Common Stock pursuant to the Offer, duly call, give notice of, convene and hold a meeting of its stockholders (the "COMPANY STOCKHOLDERS MEETING") for the purpose of obtaining the Required Company Vote. Parent and RodeoMerger Sub shall vote or cause to be voted all the shares of Company Common Stock owned of record by Parent, Inc. covenant Merger Sub or any of Parent's other Subsidiaries in favor of the approval of the Merger and agree that, between adoption of this Agreement. After the date hereof and prior to the expiration of this Agreement the Offer, Parent shall not purchase, offer to purchase, or enter into any contract, agreement or understanding regarding the purchase of shares of Company Common Stock, except pursuant to the terms of the Offer and the time of Merger.
(b) Notwithstanding the Closing, except as set forth in Section 5.01 of the Disclosure Letter preceding paragraph or as contemplated by any other provision of this Agreement, unless in the Buyer event Parent, Merger Sub or any other Subsidiary of Parent shall otherwise consent beneficially own, in writingthe aggregate, which consent at least 90% of the outstanding shares of the Company Common Stock, the Company shall not be unreasonably withheld required to call the Company Stockholders Meeting or delayed:to file or mail the Proxy Statement, and the parties hereto shall, at the request of Parent or the Company and subject to Article VI, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the acceptance for payment of and payment for shares of the Company Common Stock by Merger Sub pursuant to the Offer without a meeting of stockholders of the Company in accordance with Section 253 of the DGCL.
(ic) If required by applicable law, as soon as practicable following Parent's request, the businesses Company and Parent shall prepare and file with the SEC the Proxy Statement. Each of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Parent shall use reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders, as promptly as practicable. The Company shall use its reasonable best efforts to preserve substantially intact their business organizationobtain and furnish the information required to be included by it in the Proxy Statement and, after consultation with Parent, shall respond promptly to keep available the services any comments of the current employees of Rodeo, Inc. SEC relating to any preliminary proxy statement regarding the Merger and the other transactions contemplated by this Agreement and to preserve cause the current relationships Proxy Statement to be mailed to its stockholders, all at the earliest practicable time. The Company, acting through its Board of Directors, shall include in the Proxy Statement the recommendation of its Board of Directors that stockholders of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply vote in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 favor of the Disclosure Letter, Parent approval and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date adoption of this Agreement and the Closing, directly or indirectly do, or propose Merger. The Company shall use its reasonable best efforts to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) solicit from stockholders of the Company proxies in favor of such approval and adoption and shall take all other actions necessary or any Company Subsidiary advisable to secure the vote or consent of any class, or any options, warrants, convertible securities or other rights of any kind the Company's stockholders required by the DGCL to acquire any Units, effect the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) Merger. All obligations of the Company or any Company Subsidiary, other than as permitted under clause (ixin this Section 5.1(c) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or shall be subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this rights under Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing5.4.
Appears in 2 contracts
Sources: Merger Agreement (Rental Service Corp), Merger Agreement (Rental Service Corp)
Additional Agreements. SECTION 5.01 Conduct Section 6.01 Preparation of Business Prior to the ClosingProxy Statement and Schedule 13E-3; Company Shareholders Meeting.
(a) Parent As reasonably promptly as practicable following the Agreement Date, the Company will, in a manner that complies in all material respects with Regulation 14A promulgated under the Exchange Act with respect to the Transactions, prepare and Rodeo, Inc. covenant cause to be filed with the SEC a proxy statement to be sent to the Company’s shareholders relating to the Company Shareholders Meeting that reflects the terms and agree that, between the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision conditions of this Agreement, unless and includes the Buyer shall otherwise consent notice of appraisal rights in writingthe Merger to the holders of shares of Company Shares as required by Section 106(2) of the Bermuda Companies Act, which consent shall not be unreasonably withheld and a copy of the Fairness Opinion in its entirety (including a description of the Fairness Opinion and the financial analysis relating thereto), (such proxy statement, together with any amendments or delayed:
supplements thereto, the “Proxy Statement”). Parent will furnish to the Company all information reasonably requested by the Company concerning Parent, Sumitomo or Merger Sub, and provide such other assistance, as the Company may reasonably request in connection with the preparation, filing and distribution of the Proxy Statement. The Company will notify Parent reasonably promptly after its receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and will provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC, on the other hand. The Company will use its reasonable best efforts to respond as reasonably promptly as practicable to any comments from the SEC with respect to the Proxy Statement, and Parent will cooperate in connection therewith. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company will (i) provide Parent an opportunity to review and comment on the businesses Proxy Statement or response (including the proposed final version of the Proxy Statement or response); and (ii) include all comments reasonably proposed by Parent.
(b) The Company and Parent will cooperate to (i) concurrently with the preparation and filing of the Proxy Statement, jointly prepare and file with the SEC a Rule 13E-3 Transaction Statement on Schedule 13E-3 (together with any amendments thereof or supplements thereto, the “Schedule 13E-3”) relating to the Transactions, and furnish to each other all information concerning such Party as may be reasonably requested in connection with the preparation of the Schedule 13E-3; (ii) respond as reasonably promptly as practicable to any comments received from the SEC with respect to the Schedule 13E-3 and consult with each other prior to providing such response; (iii) as promptly as reasonably practicable, prepare and file any amendments or supplements necessary to be filed in response to any such comments; (iv) use its reasonable best efforts to have cleared by the staff of the SEC the Schedule 13E-3; and (v) to the extent required by applicable Law, as promptly as reasonably practicable prepare and file any supplement or amendment to the Schedule 13E-3. Each Party will promptly notify the other Parties upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Schedule 13E-3 and will provide the other Parties with copies of all correspondence between such Party and its Representatives, on the one hand, and the SEC, on the other hand.
(c) If prior to the Effective Time any change occurs with respect to information supplied by Parent for inclusion in the Proxy Statement or the Schedule 13E-3 that is required by Law to be described in an amendment of, or a supplement to, the Proxy Statement or the Schedule 13E-3, Parent will reasonably promptly notify the Company of such change, and Parent and the Company Subsidiaries shall will cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement or the Schedule 13E-3, as applicable, and as required by Law, in disseminating the information contained in such amendment or supplement to the Company’s shareholders. Nothing in this Section 6.01(c) will limit the obligations of any Party under Section 6.01(a).
(d) If prior to the Effective Time any event occurs with respect to the Company or any Company Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Proxy Statement or the Schedule 13E-3, that is required by Law to be conducted only indescribed in an amendment of, or a supplement to, the Proxy Statement or the Schedule 13E-3, the Company will reasonably promptly notify Parent of such event, and the Company and Parent will cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement or the Schedule 13E-3, as applicable, and as required by Law, in disseminating the information contained in such amendment or supplement to the Company’s shareholders. Nothing in this Section 6.01(d) will limit the obligations of any Party under Section 6.01(a).
(e) The Company will, as promptly as reasonably practicable after the SEC confirms it has no further comments on the Proxy Statement and the Schedule 13E-3 (i) establish a record date for determining shareholders of the Company Subsidiaries shall not take any action except in, entitled to vote at the ordinary course of business;
Company Shareholders Meeting; (ii) not change such record date or establish a different record date for the Company Shareholders Meeting without the prior written consent of Parent unless required to do so by applicable Law (and if the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships date of the Company and Shareholders Meeting as originally called is for any reason adjourned or otherwise delayed, the Company Subsidiaries with customersagrees that unless Parent has otherwise approved in writing (or as required by applicable Law or stock exchange requirement), contractholders and other Persons with whom the Company will, if possible, implement such adjournment or any other delay in such a way that the Company Subsidiary has significant business relations;
does not need to establish a new record date for the Company Shareholders Meeting, as so adjourned or delayed); and (iii) duly call, give notice of, convene and hold the Company Shareholders Meeting for the purpose of (A) seeking the Company Shareholder Approval and the Minority Shareholder Approval, (B) in accordance with Section 14A of the Exchange Act and the applicable SEC rules issued thereunder, seeking advisory approval of a proposal to the Company’s shareholders for a non-binding, advisory vote to approve certain compensation that may become payable to the Company’s named executive officers in connection with the completion of the Merger and (C) an adjournment proposal. The Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) will not change the date of, postpone or adjourn the Company and Shareholders Meeting, or submit any other proposal to the Company’s shareholders in connection with the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the followingShareholders Meeting, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
Parent. The Company will use its reasonable best efforts to (i) amend, propose promptly cause the Proxy Statement to amend, or otherwise change its Certificate be mailed to the Company’s shareholders as of Limited Partnership or the record date established for the Company Partnership Agreement or similar organizational documents;
Shareholders Meeting; and (ii) issueexcept if an Adverse Recommendation Change has been made as permitted by Section 5.03(d) and remains in effect, sellsolicit the Company Shareholder Approval and the Minority Shareholder Approval, transferincluding by retaining the services of a recognized proxy solicitor reasonably acceptable to Parent. The Company will, pledgethrough the Special Committee, dispose ofrecommend to its shareholders that they give the Company Shareholder Approval and the Minority Shareholder Approval (the “Company Recommendation”) and will include such recommendation in the Proxy Statement and the Schedule 13E-3, grantin each case, encumberunless the Special Committee has validly made an Adverse Recommendation Change as permitted by Section 5.03(d) that is still in effect. The Company agrees that, amend unless this Agreement is terminated in accordance with its terms prior thereto, its obligations to hold the terms ofCompany Shareholders Meeting pursuant to this Section 6.01 will not be affected by the commencement, public proposal, public disclosure or authorize communication to the issuance, sale, pledge, disposition, grant or Encumbrance Company of any UnitsAlternative Proposal, by the making of any Adverse Recommendation Change by the Special Committee or by any other development; provided, however, that if the public announcement of an Adverse Recommendation Change or the delivery of notice by the Company to Parent pursuant to Section 5.03(d)(i) occurs less than 10 Business Days prior to the Company Shareholders Meeting, the Incentive Distribution RightsCompany will be entitled to postpone the Company Shareholders Meeting to a date not more than 10 Business Days after the date such Company Shareholders Meeting had previously been scheduled (but in no event to a date after the date that is five Business Days before the End Date).
(f) The foregoing provisions of this Section 6.01 notwithstanding, the GP Interest Company will have the right, after consultation in good faith with Parent, to make one or any other ownership interests (including without limitation general and limited partnership interests) more successive changes in date, postponements or adjournments of the Company Shareholders Meeting (i) to ensure that any supplement or any Company Subsidiary of any class, amendment to the Proxy Statement or any options, warrants, convertible securities or other rights of any kind Schedule 13E-3 required under applicable Law is timely provided to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) shareholders of the Company within a reasonable amount of time, in the good faith judgment of the Special Committee (after consultation with outside counsel), in advance of the Company Shareholders Meeting; (ii) if required by applicable Law or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
a request from the SEC or its staff; or (iii) declareif, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of on a date for which the UnitsCompany Shareholders Meeting is scheduled, the Incentive Distribution RightsCompany has not received proxies representing a sufficient number of Common Shares to obtain the Company Shareholder Approval and the Minority Shareholder Approval, the GP Interest whether or any other ownership interests, except for not a quorum is present; provided that (A) dividends and other distributions by direct the duration of any such adjournment or indirect wholly-owned Company Subsidiaries and postponement is limited to the minimum duration reasonably necessary to remedy the circumstances giving rise to such adjournment or postponement; (B) distributions pursuant to the terms of the Company Partnership Agreement;
no single such adjournment or postponement is for more than five Business Days except as may be required by federal securities Laws; and (ivC) other than in the case of any direct clause (iii), the Company Shareholders Meeting is not postponed to later than the date that is 10 Business Days after the date for which the Company Shareholders Meeting was originally scheduled without the prior written consent of Parent and that the Company will, and will cause its proxy solicitor to, use reasonable best efforts to solicit such additional proxies (or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any presence and affirmative vote in person of the UnitsCompany’s shareholders at the Company Shareholders Meeting) as expeditiously as reasonably possible, it being understood that time shall be of the essence. If, on any date for which the Company Shareholders Meeting is scheduled, the Incentive Distribution RightsCompany has not received proxies representing a sufficient number of Common Shares to obtain the Minority Shareholder Approval, the GP Interest Company will, at Parent’s request, postpone or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of adjourn the Company Shareholders Meeting on one or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options more occasions for up to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 30 days in the aggregate to allow for all transactions pursuant the solicitation of additional proxies to this subsection (vi);
(vii) except for Permitted Encumbrances or as required obtain the Minority Shareholder Approval. The Company will also consider in good faith any other request by any Material Contract, lease, license, mortgage or otherwise encumber or subject Parent to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to postpone the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingShareholders Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Urovant Sciences Ltd.), Merger Agreement (Sumitomo Chemical Co., Ltd.)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.1. PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, Decor and Interiors shall prepare and file with the SEC the Joint Proxy Statement and Interiors shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Decor and Interiors shall use best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Decor will use all best efforts to cause the Joint Proxy Statement to be mailed to Decor's stockholders, and Interiors will use all best efforts to cause the Joint Proxy Statement to be mailed to Interiors's stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Interiors shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Interiors Class A Common Stock in the Merger and the time approval of the ClosingCertificate of Amendment and Decor shall furnish all information concerning Decor and the holders of Decor Common Stock as may be reasonably requested in connection with any such action. No filing of, except as or amendment or supplement to, the Form S-4 or the Joint Proxy Statement will be made by Interiors without providing Decor the opportunity to review and comment thereon. Interiors will advise Decor, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Interiors Class A Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to Decor or Interiors, or any of their respective affiliates, officers or directors, should be discovered by Decor or Interiors which should be set forth in Section 5.01 an amendment or supplement to any of the Disclosure Letter Form S-4 or as contemplated by the Joint Proxy Statement, so that any other provision of this Agreementsuch documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses light of the Company circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and the Company Subsidiaries an appropriate amendment or supplement describing such information shall be conducted only in, and promptly filed with the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organizationSEC and, to keep available the services extent required by law, disseminated to the stockholders of the current employees of Rodeo, Inc. Decor and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceInteriors.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary Decor shall, between as promptly as practicable after the date of this Agreement and Form S-4 is declared effective under the ClosingSecurities Act, directly or indirectly doduly call, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose give notice of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general convene and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any hold a meeting of its assets or properties, other than transactions that are in stockholders (the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii"Decor Stockholders Meeting") except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions DGCL for the purpose of obtaining the Decor Stockholder Approval and, subject to its rights to terminate this Agreement pursuant to Section 4.2(b), shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger, and the other transactions contemplated hereby. Without limiting the generality of the foregoing but subject to its rights to terminate this Agreement pursuant to Section 4.2(b), Decor agrees that its obligations pursuant to the first sentence of this Section 5.01;5.1(b) shall not be affected by the commencement, public proposal, public disclosure or communication to Decor of any Decor Takeover Proposal.
(xivc) settle or compromise any material AuditInteriors shall, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim as promptly as practicable after the Form S-4 is declared effective under the WARN Act or any similar state law or regulation because Securities Act, duly call, give notice of, convene and hold a meeting of a its stockholders (the "plant closing" or Interiors Stockholders Meeting"mass layoff" (each as defined ) in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection accordance with the transactions described in clause (vi) above;
(xviii) except as provided in DGCL for the purpose of obtaining the Interiors Stockholder Approval and, subject to its rights to terminate this Agreement pursuant to Section 4.3(b), shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, enter intothe Merger, amendthe Certificate of Amendment, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, New Interiors Stock Plan and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior transactions contemplated hereby. Without limiting the generality of the foregoing but subject to the date hereof would be required its rights to be disclosed terminate this Agreement pursuant to Section 3.20;4.3(b), Interiors agrees that its obligations pursuant to the first sentence of this Section 5.1(c) shall not be affected by the commencement, public proposal, public disclosure or communication to Interiors of any Interiors Takeover Proposal.
(xixd) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) Interiors and Decor will use best efforts to hold the corporate structure or ownership of Decor Stockholders Meeting and the Company or any Company Subsidiary other than Interiors Stockholders Meeting on the same date and as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of soon as reasonably practicable after the foregoingdate hereof.
Appears in 2 contracts
Sources: Merger Agreement (Interiors Inc), Merger Agreement (Interiors Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.1. PREPARATION OF PROXY STATEMENT; THE COMPANY STOCKHOLDERS MEETING.
(a) If required by the DGCL or the Company's Organizational Documents in order to consummate the Merger, the Company shall, as soon as practicable following the acquisition by Merger Sub of shares of Company Common Stock pursuant to the Offer, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") for the purpose of obtaining the Required Company Votes, and, the Company shall, through its Board of Directors, recommend to its stockholders that they vote in favor of the approval of the Merger and the adoption of this Agreement; provided, however, that the Company Board may withdraw, modify or change such recommendation to the extent that the Company Board, after consultation with and based upon the advice of independent legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties under applicable law. Parent and RodeoMerger Sub shall vote or cause to be voted all the shares of Company Common Stock owned of record by Parent, Inc. covenant Merger Sub or any of Parent's other Subsidiaries in favor of the approval of the Merger and agree that, between the adoption of the Agreement. After the date hereof and prior to the expiration of this Agreement the Offer, Parent shall not purchase, offer to purchase, or enter into any contract, agreement or understanding regarding the purchase of shares of Company Common Stock, except pursuant to the terms of the Offer and the time of Merger.
(b) Notwithstanding the Closing, except as set forth in Section 5.01 of the Disclosure Letter preceding paragraph or as contemplated by any other provision of this Agreement, unless in the Buyer event Parent, Merger Sub or any other Subsidiary of Parent shall otherwise consent beneficially own, in writingthe aggregate, which consent at least 90% of the outstanding shares of the Company Common Stock, the Company shall not be unreasonably withheld or delayed:
(i) the businesses of required to call the Company and Stockholders Meeting or to file or mail the Company Subsidiaries shall be conducted only inProxy Statement, and the parties hereto shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the acceptance for payment of and payment for shares of Company and Common Stock by Merger Sub pursuant to the Offer without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.
(c) In connection with any stockholder meeting, the Company Subsidiaries shall not take any action except in, promptly prepare and file with the ordinary course of business;
(ii) SEC the Proxy Statement. The Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available cause the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated Proxy Statement to be conducted by cleared with the Company or (iii) ancillary SEC and mailed to the Company's current businessstockholders, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or as promptly as practicable, and, thereafter, to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee obtain approval of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required Merger by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingstockholders.
Appears in 2 contracts
Sources: Merger Agreement (Autogrill Acquisition Co), Merger Agreement (Host Marriott Services Corp)
Additional Agreements. SECTION 5.01 Conduct 6.1 Preparation of Business Prior to the ClosingProxy Statement and the Form S-4; Accountant's Letters.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayedhereof:
(i) Company and Parent shall jointly prepare for inclusion in the businesses Form S-4, as soon as practicable after the date hereof, a proxy statement (the "Proxy Statement") relating to the Merger and the Share Issuance in accordance with the Exchange Act and the rules and regulations under the Exchange Act, with respect to the transactions contemplated by this Agreement. Company, Parent and Purchaser shall cooperate with each other in the preparation of the Proxy Statement. Company and Parent shall use all reasonable efforts to respond promptly to any comments made by the Company Subsidiaries shall be conducted only inSEC with respect to the Proxy Statement, and to cause the Proxy Statement to be mailed to the stockholders of Company and Parent at the Company Subsidiaries shall not take any action except in, earliest practicable date after the ordinary course of business;Form S-4 is declared effective by the SEC.
(ii) Parent shall prepare and file with the SEC, as soon as practicable after the date hereof, the Form S-4. Each of Company and Parent shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Parent also shall take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger, and Company shall furnish all information concerning Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services holders of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries Shares as may be reasonably requested in connection with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceaction.
(b) By way Company shall use its best efforts to cause to be delivered to Parent a letter of amplification and not limitationErnst & Young LLP, except as contemplated by this AgreementCompany's independent public accountants, or as reflected in the Company SEC Reports filed prior to dated a date within two business days before the date hereof or Section 5.01 on which the Form S-4 shall become effective, and a letter of Ernst & Young LLP, dated a date within two business days before the Disclosure LetterClosing Date, each addressed to Parent, in form and substance reasonably satisfactory to Parent and Rodeo, Inc. covenant customary in scope and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except substance for (A) dividends and other distributions letters delivered by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or independent accountants in connection with registration statements similar to the transactions described in clause (vi) above;Form S-4.
(xviiic) except as provided Parent shall use its best efforts to cause to be delivered to Company a letter of KPMG Peat Marwick LLP, Parent's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and a letter of KPMG Peat Marwick LLP, dated a date within two business days before the Closing Date, each addressed to Company, in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the form and substance reasonably satisfactory to Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingForm S-4.
Appears in 2 contracts
Sources: Merger Agreement (Pillowtex Corp), Merger Agreement (Fieldcrest Cannon Inc)
Additional Agreements. SECTION 5.01 Conduct Section 6.1 Preparation of Business Prior to the ClosingProxy Statement and Schedule 13E-3.
(a) Promptly following the date hereof, the Company, with the assistance and cooperation of Parent and RodeoMerger Sub, Inc. covenant shall prepare, and agree that, between cause to be mailed to the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses shareholders of the Company as promptly as reasonably practicable after having cleared the SEC comments on the Schedule 13E-3, the Proxy Statement. Parent and Merger Sub shall promptly furnish all information as the Company may reasonably request in connection with such actions and the preparation of the Proxy Statement. The Company Subsidiaries shall be conducted only in, will provide Parent with a reasonable opportunity to review and comment on the Company and Proxy Statement prior to mailing the Company Subsidiaries shall not take Proxy Statement to the shareholders or any action except inamendments or supplements thereto.
(b) Concurrently with the preparation of the Proxy Statement, the ordinary course of business;
(ii) the Company Company, Parent and the Company Subsidiaries Merger Sub shall use reasonable best efforts to preserve substantially intact their business organization, jointly prepare and cause to keep available be filed with the services SEC the Schedule 13E-3. Each of the current employees of RodeoCompany, Inc. Parent and Merger Sub shall use its reasonable best efforts so that the Schedule 13E-3 will comply as to preserve the current relationships of the Company form and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply substance in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company requirements of the Exchange Act and the Company Subsidiaries shall rules and regulations promulgated thereunder. Each party shall, as promptly as practicable after the receipt thereof, provide to the other party copies of any written comments and advise the other party of any oral comments, with respect to the Schedule 13E-3, received from the SEC and will use their its reasonable best efforts to continue in force with good resolve and responsible insurance companies adequate insurance covering risks respond as promptly as practicable to any comments of such types the SEC regarding the Schedule 13E-3. Each of Parent, Merger Sub and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed will be provided with a reasonable opportunity to review and comment on the initial Schedule 13E-3 and any amendment or supplement thereto prior to filing with the date hereof or SEC. Notwithstanding anything herein to the contrary, and subject to compliance with the terms of Section 5.01 6.4, in connection with any disclosure regarding a Change of the Disclosure LetterRecommendation, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld required to provide Parent or delayed:
Merger Sub with the opportunity to review or comment on (ior include comments proposed by Parent or Merger Sub in) amend, propose to amend, or otherwise change its Certificate such disclosure regarding the Change of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any classRecommendation, or any options, warrants, convertible securities comments thereon or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or in any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of filing by the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwisewith the SEC, with respect to such disclosure.
(c) If at any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant time prior to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectlyEffective Time, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary information relating to the Company's current business, Parent or Merger Sub, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective Affiliates, directors or officers, directorsshould be discovered by the Company, unitholdersParent or Merger Sub which should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13E-3, owners so that such document would not include any misstatement of a material fact or Affiliatesomit to state any material fact necessary to make the statements therein, on in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other hand, which if entered into prior party and an appropriate amendment to the date hereof would Schedule 13E-3 describing such information shall be required promptly filed with the SEC and an appropriate amendment or supplement describing such information shall be disseminated to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership shareholders of the Company or any Company Subsidiary other than as contemplated to the extent required by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingapplicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Ren Jinsheng), Merger Agreement (Simcere Pharmaceutical Group)
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; --------------------------------------------------- Stockholders' Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this --------------------- Agreement, unless the Buyer Company and Parent shall otherwise consent prepare and Parent shall file with the SEC the Form S-4, in writing, which consent shall not the Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus. Each of the Company and Parent shall use its commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its commercially reasonable efforts to cause the Proxy Statement to be mailed to the stockholders of the Company Subsidiaries as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be conducted only intaken under any applicable state securities laws in connection with the issuance of shares of Parent Common Stock in the Merger, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) furnish all information concerning the Company and the holders of shares of Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organizationCommon Stock as may be reasonably requested by Parent in connection with any such action and the preparation, to keep available the services filing and distribution of the current employees of RodeoProxy Statement. No filing of, Inc. or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to preserve the current relationships of Proxy Statement will made by the Company Company, in each case without providing the other party a reasonable opportunity to review and comment thereon. If at any time prior to the Company Subsidiaries with customers, contractholders and other Persons with whom Effective Time any information relating to the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any classParent, or any optionsof their respective Affiliates, warrantsdirectors or officers, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to should be conducted discovered by the Company or (iii) ancillary Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the Company's current businessextent required by law, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable disseminated to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee stockholders of the Company, Seller . The parties shall notify each other promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with 52 copies of (i) all correspondence between it or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company SubsidiaryRepresentatives, on the one hand, and any the SEC or the staff of their respective officers, directors, unitholders, owners or Affiliatesthe SEC, on the other hand, which if entered into prior with respect to the Proxy Statement, the Form S-4 or the Merger and (ii) all orders of the SEC relating to the Form S-4.
(b) The Company shall, as soon as practicable following the date hereof would be required of this Agreement, establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders' Meeting") solely for the purpose of obtaining the Stockholder Approval. Subject to be disclosed Section 4.02(b), the Company shall, through its Board of Directors, recommend to its stockholders adoption of this Agreement. Without limiting the generality of the foregoing, the Company's obligations pursuant to the first sentence of this Section 3.20;
5.01(b) shall not be affected by (xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashioni) the corporate structure commencement, public proposal, public disclosure or ownership communication to the Company of any Takeover Proposal or (ii) the withdrawal or modification by the Board of Directors of the Company or any Company Subsidiary other than as contemplated by committee thereof of such Board of Directors' or such committee's approval or recommendation of this Agreement; or
(xx) enter into any contract, agreement, commitment the Option Agreement or arrangement to do any of the foregoingMerger.
Appears in 1 contract
Sources: Merger Agreement (Alza Corp)
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; ----------------------------------- ---------------- Shareholders Meeting.
(a) As soon as practicable following the date of this --------------------- Agreement, the Company and Parent shall prepare and Rodeothe Company shall file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, Inc. covenant in which the Proxy Statement will be included as a prospectus. Each of the Company and agree thatParent shall use its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use its reasonable efforts to cause the Proxy Statement to be mailed to the Company's shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action and the preparation, between filing and distribution of the Proxy Statement. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, or the Proxy Statement will be made by the Company, without providing the other party the opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. The Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the shareholders of the Company.
(b) The Company will, as soon as reasonably practicable, establish a record date following the date of this Agreement for, duly call, give notice of, convene and hold a meeting of its shareholders (the time "Shareholders Meeting") for the purpose of obtaining the ClosingShareholder Approval. The Company will, except as set forth in Section 5.01 through its Board of the Disclosure Letter or as contemplated by any other provision Directors, recommend to its shareholders adoption of this Agreement. Without limiting the generality of the foregoing, unless the Buyer shall otherwise consent in writing, which consent Company agrees that its obligations pursuant to the first and second sentences of this Section 5.01(b) shall not be unreasonably withheld affected by the commencement, public proposal, public disclosure or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material communication to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingTakeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (Centocor Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing7.1. SHAREHOLDER APPROVAL; PREPARATION OF S-4 AND PROXY STATEMENT/PROSPECTUS.
(a) If approval of the Company's stockholders is required by applicable law in order to consummate the Merger other than pursuant to Section 253 of Delaware Law, following the acceptance for exchange of Shares pursuant to the Offer, Parent and Rodeothe Company shall, Inc. covenant as soon as practicable following the acceptance of Shares pursuant to the Offer, prepare and agree thatthe Company shall file with the SEC the Company Proxy Statement and Parent and the Company shall prepare and Parent shall file with the SEC a post-effective amendment to the Form S-4 (the "POST-EFFECTIVE AMENDMENT") for the offer and sale of the Parent Common Stock pursuant to the Merger and in which the Company Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use all reasonable efforts to have the Post-Effective Amendment declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all reasonable efforts to cause the Company Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Post-Effective Amendment is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Offer and the Merger and the Company shall furnish all information concerning the Company and the holders of capital stock of the Company as may be reasonably requested in connection with any such action and the preparation, between filing and distribution of the Company Proxy Statement. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Post-Effective Amendment will be made by Parent, or the Company Proxy Statement will be made by the Company, without providing the other party a reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Post-Effective Amendment has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Post-Effective Amendment or comments thereon and responses thereto or requests by the SEC for additional information. The Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Company Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to either of the Post-Effective Amendment or the Company Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company.
(b) If approval of the Company's stockholders is required by applicable law in order to consummate the Merger, the Company shall establish, prior to or as soon as practicable following the date upon which the Post-Effective Amendment becomes effective, a record date (which shall be prior to or as soon as practicable following the date upon which the Post-Effective Amendment becomes effective) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "COMPANY STOCKHOLDERS MEETING") for the purpose of considering and taking action upon this Agreement and the Merger and (with the consent of Parent) such other matters as may in the reasonable judgment of the Company be appropriate for consideration at the Company Stockholders Meeting. Once the Company Stockholders Meeting has been called and noticed, the Company shall not postpone or adjourn the Company Stockholders Meeting (other than for the absence of a quorum) without the consent of Parent. Subject to the Company's right, pursuant to Section 1.2(b) hereof, to withdraw or modify the Recommendations, the Board of Directors of the Company shall include in the Post-Effective Amendment and the Company Proxy Statement a copy of the Recommendations as such Recommendations pertain to the Merger and this Agreement. Notwithstanding the foregoing, if approval of the Company's stockholders is required by applicable law in order to consummate the Merger, the Board of Directors of the Company shall submit this Agreement and the Merger for approval to the Company's stockholders whether or not the Board of Directors of the Company determines in accordance with Section 1.2(b) after the date hereof that this Agreement and the Merger are no longer advisable and recommends that the stockholders of the Company reject it. Unless the Board of Directors of the Company has withdrawn its recommendation of this Agreement and the time of the ClosingMerger in compliance with this Section 1.2(b), except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use its reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships solicit from stockholders of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply proxies in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date favor of this Agreement and the ClosingMerger and shall take all other actions necessary or advisable to secure the vote or consent of stockholders required by Delaware Law to effect the Merger.
(c) Notwithstanding the foregoing clauses (a) and (b) above, directly or indirectly do, or propose to do, any in the event that Merger Subsidiary shall acquire at least 90% of the followingoutstanding Shares in the Offer, the parties hereto shall take all necessary actions to cause the Merger to become effective, as soon as practicable after the expiration of the Offer, without the prior written consent a meeting of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee stockholders of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions Section 253 of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingDelaware Law.
Appears in 1 contract
Sources: Merger Agreement (Computer Associates International Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior (i) The Company and the Investor agree that the Investor will cause its Affiliates to comply with the Closing.
(a) Parent and Rodeo, Inc. covenant and agree that, between the date terms of this Agreement and shall be responsible for any breach of this Agreement by any such Affiliate. As used in this Agreement, the time of term “Affiliate” shall have the Closing, except as meaning set forth in Section 5.01 Rule 12b-2 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of the Disclosure Letter or 1934, as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreementamended, or as reflected in the Company SEC Reports filed prior to rules or regulations promulgated thereunder (the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i“Exchange Act”) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwiseand, with respect to any person or entity, shall include all persons or entities that at any time during the term of this Agreement become Affiliates of such person or entity. For purposes of this Agreement, each of ▇▇▇▇▇▇▇▇▇ ▇▇▇, M.T. Maritime Management and their respective Affiliates shall be deemed to be an “Affiliate” of the UnitsInvestor.
(ii) So long as the Company is not in material breach of this Agreement and so long as the New Director has been nominated by the Board for reelection as a Class III director at the 2026 Annual Meeting, the Incentive Distribution Rights, Investor agrees that it will appear in person or by proxy at the GP Interest or any other ownership interests, except for 2026 Annual Meeting and vote all Common Shares beneficially owned by the Investor at the 2026 Annual Meeting (A) dividends in favor of the New Director and other distributions by direct or indirect wholly-owned Company Subsidiaries and the Other Director Nominees, (B) distributions in favor of the ratification of the appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2026, and (C) in favor of the Company’s “Say-on-Pay” proposal on the compensation of named executive officers. Except as expressly provided in this Section 1(b)(ii), the Investor (and any Affiliates thereof) shall be entitled to vote its shares on any other proposal duly brought before the 2026 Annual Meeting or otherwise vote as it determines in its sole discretion.
(iii) Prior to the date of this Agreement, the New Director has submitted to the Company (A) a fully completed copy of the Company’s director nominee questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members, (B) the information required pursuant to the terms Section 23.9.2 of the Company Partnership Agreement;Company’s Bye-Laws, effective as of August 5, 2022 (the “Bye-Laws”) and (C) the written acceptance of their appointment as required by Section 23.11 of the Bye-Laws.
(iv) other than in the case of any direct or indirect wholly-owned The Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions hereby agrees that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in Board shall not increase the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms size of the Credit Agreements;
Board to include more than ten (x10) enter, to a material extent, any line members without the consent of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to Investor until the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee 2027 annual general meeting of the Company’s shareholders (the “2027 Annual Meeting”); provided, Seller that, if the Investor or any its Affiliates submit a notice to the Company Subsidiary, pursuant to the Bye-Laws to propose a nominee or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement nominees for director for the benefit 2027 Annual Meeting, the limitation in this (iv) shall terminate upon receipt of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingdirector nomination notice.
Appears in 1 contract
Sources: Cooperation Agreement (Pangaea Logistics Solutions Ltd.)
Additional Agreements. SECTION 5.01 Conduct Section 5.1 Preparation of Business the Joint Proxy Statement/Prospectus and the Registration Statement. As promptly as reasonably practicable following the date hereof, Parent and the Company shall cooperate in preparing and Parent shall cause to be filed with the SEC mutually acceptable proxy materials and prospectus relating to the matters to be submitted to the stockholders of the Company and Parent for a vote in connection with the Merger and the transactions contemplated hereby (such proxy materials and prospectus and any amendments or supplements thereto, the "Joint Proxy Statement/Prospectus") and Parent shall prepare and file with the SEC the Registration Statement. The Joint Proxy Statement/Prospectus will be included as a prospectus in and will constitute a part of the Registration Statement as Parent's prospectus. Parent shall use its commercially reasonable efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Registration Statement declared effective by the SEC as soon after such filing as practicable and to keep the Registration Statement effective as long as is necessary to consummate the Merger and the transactions contemplated hereby. Each of Parent and the Company shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments, and advise each other of any oral comments, with respect to the Joint Proxy Statement/Prospectus or Registration Statement received from the SEC. Prior to the Closing.
(a) Effective Time, Parent shall use its commercially reasonable efforts to obtain all necessary state securities law or "blue sky" approvals in connection with the Merger and to consummate the other transactions contemplated by this Agreement; provided, however, Parent shall not be required to qualify to do business in any jurisdiction in which it is now not so qualified. Each of Parent and Rodeo, Inc. covenant the Company shall cooperate with one another and agree that, between shall furnish all information concerning itself as the date of this Agreement other may reasonably request in connection with such actions and the time preparation of the Closing, except as set forth in Section 5.01 Registration Statement and Joint Proxy Statement/Prospectus. Parent shall provide the Company with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Registration Statement prior to Parent filing such with the SEC and Parent will provide the Company with a copy of all such filings made with the Disclosure Letter or as contemplated by SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Joint Proxy Statement/Prospectus or the Registration Statement shall be made without the approval of this Agreement, unless both Parent and the Buyer shall otherwise consent in writingCompany, which consent approval shall not be unreasonably withheld or delayed:
(i) ; provided, that, with respect to documents filed by Parent, this right of approval shall apply only with respect to information relating to the businesses Company or its business, financial condition or results of operations and with respect to information which, in the reasonable judgment of the Company and could unreasonably delay or impair the Company Subsidiaries shall ability of the parties to consummate the transaction contemplated under this Agreement. Parent will use commercially reasonable efforts to cause the Joint Proxy Statement/Prospectus to be conducted only inmailed to its stockholders, and the Company and will use commercially reasonable efforts to cause the Joint Proxy Statement/Prospectus to be mailed to the Company Subsidiaries stockholders, in each case, as promptly as practicable after the Registration Statement is declared effective under the Securities Act, but in no event later than three (3) Business Days after the Registration Statement is declared effective. The Registration Statement shall register for resale the shares of Parent Common Stock received in the Merger by each affiliate (within the meaning of Rule 145 of the Securities Act) of the Company that is not take any action except inan affiliate (within the meaning of Rule 144 of the Securities Act) of Parent and each Stockholder of the Company who will be, immediately following the ordinary course Effective Time, an affiliate of business;
Parent and shall include the information required by Item 7 of Form S-4 and Item 507 of Regulation S-K under the Securities Act for the benefit of such affiliates as selling stockholders of the number of shares of Parent Common Stock received in the Merger. Each such selling stockholder shall agree to abide by the provisions of Section 4 of the Registration Rights Agreement (as defined herein). If required by applicable law, rules or regulations, after the Effective Time, Parent shall file a post-effective amendment on Form S-3 to the Registration Statement (the "S-3 Amendment") which shall include a resale prospectus for the selling stockholders of the number of shares of Parent Common Stock received by them in the Merger, and Parent shall keep the S-3 Amendment effective until the earliest of: (i) two (2) years after the Effective Time, (ii) the Company and date of final sale by the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available selling stockholders of all shares of Parent Common Stock registered on the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company S-3 Amendment ("Registrable Resale Shares") or any Company Subsidiary has significant business relations;
(iii) the Company and date upon which all selling stockholders' Registrable Resale Shares become saleable without registration pursuant to Rule 144 under the Company Subsidiaries shall comply in all material respects with Securities Act. If, at any time prior to the Effective Time, any information relating to Parent or the Company, or any of their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) affiliates, officers or directors, is discovered by Parent or the Company and the Company Subsidiaries shall use their reasonable best efforts to continue such information should be set forth in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, an amendment or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect supplement to any of the UnitsRegistration Statement or the Joint Proxy Statement/Prospectus so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Incentive Distribution Rightsparty hereto discovering such information shall promptly notify the other parties hereto and, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as extent required by any Material Contractapplicable law, leaserules or regulations, license, mortgage an appropriate amendment or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in supplement describing such information shall be promptly filed by Parent with the ordinary course of business SEC and not material disseminated to the Company stockholders of Parent and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 6.1 Preparation of Business Prior to the ClosingProxy Statement and the Schedule 13E-3.
(a) Subject to Section 6.8, the Company, with the assistance and cooperation of Parent and RodeoMerger Sub, Inc. covenant shall prepare and agree cause to be filed with the SEC the Proxy Statement as promptly as reasonably practicable following the date hereof.
(b) Concurrently with the preparation of the Proxy Statement, the Company and Parent shall jointly prepare and caused to be filed with the SEC the Schedule 13E-3 as promptly as reasonably practicable following the date hereof.
(c) Each of the Company and Parent shall, and shall cause its Subsidiaries and Representatives to, provide such information specifically for inclusion or incorporation by reference in the Proxy Statement and the Schedule 13E-3 as may be necessary or appropriate so that, between at the date of this Agreement it is first mailed to the Company’s stockholders and at the time of the ClosingCompany Stockholders Meeting or filed with the SEC, except as applicable, the Proxy Statement and the Schedule 13E-3 will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. If at any time prior to the Effective Time any information relating to Parent or the Company or any of their respective Subsidiaries, officers or directors should become known to Parent or the Company which should be set forth in Section 5.01 an amendment or supplement to the Proxy Statement or the Schedule 13E-3, so that any of such documents would not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the Disclosure Letter circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Parties and an appropriate amendment or as contemplated supplement describing such information shall be promptly filed with the SEC and, to the extent required by any other provision applicable Law, disseminated to the stockholders of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:Company.
(d) The Company agrees to promptly (i) notify Parent of the businesses receipt of any comments from the SEC with respect to the Proxy Statement or the Schedule 13E-3 and of any request by the SEC for amendments of, or supplements to, the Proxy Statement or the Schedule 13E-3, and (ii) provide Parent with copies of all correspondence between such Party and the SEC with respect to the Proxy Statement and the Schedule 13E-3 as promptly as practicable after receipt thereof. Prior to filing or mailing the Proxy Statement and the Schedule 13E-3 (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent a reasonable opportunity to review and comment on such document or response, and (ii) shall reflect in such document or response comments reasonably proposed by Parent. Each of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Parent shall use its reasonable best efforts to preserve substantially intact their business organization, resolve all comments from the SEC with respect to keep available the services Proxy Statement and the Schedule 13E-3 as promptly as reasonably practicable. Each of the current employees of Rodeo, Inc. and to preserve Parties shall use its reasonable best efforts so that the current relationships of the Company Proxy Statement and the Company Subsidiaries with customers, contractholders Schedule 13E-3 will comply as to form and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply substance in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due the applicable requirements of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder. Notwithstanding the foregoing or anything else herein to the contrary, and subject to compliance with their respective obligations under applicable Law; and
(iv) the terms of Section 6.4, in connection with any disclosure regarding a Change of Recommendation, the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld required to provide Parent or delayed:
Merger Sub the opportunity to review or comment on (ior include comments proposed by Parent or Merger Sub in) amend, propose to amendthe Schedule 13E-3 or the Proxy Statement, or otherwise change its Certificate of Limited Partnership any amendment or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms ofsupplement thereto, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest comments thereon or any other ownership interests (including without limitation general and limited partnership interests) of filing by the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, with the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwiseSEC, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingdisclosure.
Appears in 1 contract
Sources: Merger Agreement (Trunkbow International Holdings LTD)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the ClosingSection 5.1. PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, Geon and Hann▇ ▇▇▇ll prepare and file with the SEC the Joint Proxy Statement and the time Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company Geon and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall Hann▇ ▇▇▇ll use reasonable best efforts to preserve substantially intact their business organization, to keep available have the services of Form S-4 declared effective under the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in Securities Act as promptly as practicable after such filing. Geon will use all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue cause the Joint Proxy Statement to be mailed to Geon's stockholders, and Hann▇ ▇▇▇l use all reasonable best efforts to cause the Joint Proxy Statement to be mailed to Hann▇'▇ ▇▇▇ckholders, in force each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Except as required by applicable law, (i) Hann▇ ▇▇▇ll cause the Joint Proxy Statement to contain the recommendation of the Hann▇ ▇▇▇rd of Directors that the stockholders of Hann▇ ▇▇▇pt this Agreement and the Consolidation and the transactions contemplated hereby and (ii) Geon shall cause the Joint Proxy Statement to contain the recommendation of the Geon Board of Directors that the stockholders of Geon adopt this Agreement and the Consolidation and the transactions contemplated hereby. Geon and Hann▇ ▇▇▇ll also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with good the issuance of Resulting Corporation Shares in the Consolidation and responsible insurance companies adequate insurance covering risks each party shall furnish all information concerning itself and the holders of its common stock as may be reasonably requested by the other party in connection with any such action. No filing of, or amendment or supplement to, the Joint Proxy Statement or the Form S-4 will be made by Hann▇ ▇▇ Geon without providing the other party the opportunity to review and comment thereon. Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of Resulting Corporation Shares issuable in connection with the Consolidation for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to Geon or Hann▇, ▇▇ any of their respective affiliates, officers or directors, should be discovered by Geon or Hann▇ ▇▇▇ch should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement, so that any of such types documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party hereto and in an appropriate amendment or 35 44 supplement describing such amounts as are consistent information will be promptly filed with past practicethe SEC and, to the extent required by law, disseminated to the stockholders of Geon and Hann▇.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary Geon shall, between as soon as practicable following the date of this Agreement Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the Closing, directly or indirectly do, or propose to do, any "Geon Stockholders Meeting") for the purpose of obtaining the Geon Stockholder Approval. Without limiting the generality of the followingforegoing, without but subject to its rights pursuant to Section 4.2 and Section 7.1(g), Geon agrees that its obligations pursuant to the prior written consent first sentence of Buyerthis Section 5.1(b) will not be affected by the commencement, which consent public proposal, public disclosure or communication to Geon of any Geon Takeover Proposal.
(c) Hann▇ ▇▇▇ll, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Hann▇ ▇▇▇ckholders Meeting") for the purpose of obtaining the Hann▇ ▇▇▇ckholder Approval. Without limiting the generality of the foregoing but subject to its rights pursuant to Section 4.3 and Section 7.1(d), Hann▇ ▇▇▇ees that its obligations pursuant to the first sentence of this Section 5.1(c) shall not be unreasonably withheld affected by the commencement, public proposal, public disclosure or delayed:communication to Hann▇ ▇▇ any Hann▇ ▇▇▇eover Proposal.
(id) amend, propose Hann▇ ▇▇▇ Geon will use all reasonable best efforts to amend, or otherwise change its Certificate of Limited Partnership or hold the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company Geon Stockholders Meeting and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, Hann▇ ▇▇▇ckholders Meeting on the one hand, same date and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to as soon as practicable after the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoinghereof.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing7.1. PREPARATION OF FORM F-4 AND PROXY STATEMENT; THE STOCKHOLDERS MEETINGS.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, the Company and Parent shall prepare and file with the time SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form F-4, in which the Proxy Statement shall be included as a prospectus, together with any other documents required by the Securities Act or Exchange Act in connection with the Merger. Subject to the provisions of Section 7.5, the Proxy Statement shall include the recommendation of the Closing, except as set forth in Section 5.01 Board of Directors of the Disclosure Letter or as contemplated by any other provision Company in favor of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses Merger. Each of the Company and Parent shall use reasonable efforts to have the Form F-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company Subsidiaries shall use reasonable efforts to cause the Proxy Statement to be conducted only inmailed to the Company's stockholders as promptly as practicable after the Form F-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable securities laws of the United States or United Kingdom or "blue sky" laws in connection with the issuance of Parent Ordinary Shares pursuant to the Merger, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) furnish all information concerning the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Subsidiaries Stock Option Plans and Company Warrants as may be reasonably requested in connection with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceaction.
(b) By way The Company shall duly call, give notice of, convene and hold a meeting of amplification its stockholders (the "Company Stockholders Meeting") for the purpose of obtaining the Required Company Votes, and, A-44 45 the Company's Board of Directors shall, subject to its fiduciary duties to stockholders (as determined in good faith by the Company's Board of Directors based upon the advice of counsel) and not limitationthe terms of Section 7.5(b) of this Agreement, except as recommend to its stockholders that they approve the transactions contemplated by this Agreement. Parent shall vote or cause to be voted all the shares of Company Common Stock, if any, owned of record by Parent or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than subsidiaries in favor of the transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;contemplated by this Agreement.
(viiic) except as required by any Material Contract or in the ordinary course of businessParent shall duly call, sell, transfer or otherwise dispose give notice of, convene and hold the Parent Shareholder Meeting for the purpose of obtaining the Required Parent Votes, and, Parent's Board of Directors shall, subject to its fiduciary duties to shareholders (as determined in good faith by Parent's Board of Directors based upon the advice of counsel) and Sections 7.5(e) and (f) of this Agreement, recommend to its shareholders that they approve the transactions contemplated by this Agreement. The Company shall vote or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated cause to be conducted by the Company or (iii) ancillary to the Company's current businessvoted all Parent Ordinary Shares, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company'sif any, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course owned of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice record by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, of its subsidiaries in the ordinary course favor of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or. Parent agrees that (i) there shall be presented at the Parent Shareholder Meeting a resolution to authorize the Board of Directors of Parent to allot Parent Ordinary Shares pursuant to Section 80 of the Companies Act, without regard to Section 89 of the Companies Act, pursuant to that certain Deed of even date herewith between Parent, the Company, Therapeutic Antibodies U.K. Limited and Stua▇▇ ▇. ▇▇▇▇▇▇ (▇▇e "Wall▇▇ ▇▇▇d") and (ii) Parent shall, through its Board of Directors, subject to its fiduciary duties to shareholders (as determined by Parent's Board of Directors based upon the advice of counsel), recommend to its shareholders that they vote in favour of such resolution.
(xxd) enter into any contractThe Company shall use reasonable efforts to cause to be delivered to Parent "comfort" letters of PricewaterhouseCoopers LLP, agreementthe Company's independent public accountants, commitment or arrangement dated (i) a date within two Business Days before the date on which the Form F-4 shall become effective and (ii) the Closing Date, and addressed to do any Parent, in form reasonably satisfactory to Parent and customary in scope for letters delivered by independent public accountants in connection with registration statements similar to the Form F-4.
(e) Parent shall use reasonable efforts to cause to be delivered to the Company "comfort" letters of Mazars Nevi▇▇▇ ▇▇▇▇▇▇▇ ("▇azars"), Parent's independent public accountants, dated (i) a date within two business days before the foregoingdate on which the Form F-4 shall become effective and (ii) the Closing Date, and addressed to the Company, in form reasonably satisfactory to the Company and customary in scope for letters delivered by independent public accountants in connection with registration statements similar to the Form F-4.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 6.01. Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as reasonably practicable following the date of this Agreement Agreement, RJR and ▇▇▇▇▇▇▇▇ American shall prepare and file with the SEC (i) the Proxy Statement in preliminary form and (ii) the Form S-4, in which the Proxy Statement will be included as a prospectus, and each of RJR and B&W shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments of the SEC with respect thereto. Each of RJR and B&W shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing. RJR shall use its reasonable best efforts to cause the Proxy Statement to be mailed to RJR's stockholders as promptly as reasonably practicable after the Form S-4 is declared effective under the Securities Act. RJR shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of ▇▇▇▇▇▇▇▇ American Common Stock in the Merger, and RJR shall furnish all information concerning RJR and the time holders of RJR Common Stock and rights to acquire RJR Common Stock pursuant to RJR Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the Closingreceipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such party or any of its representatives, except as set forth in Section 5.01 on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger. Notwithstanding the foregoing, prior to filing the Form S-4 (or any amendment or supplement thereto) or filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the Disclosure Letter SEC with respect thereto, each of RJR and B&W, as the case may be, (i) shall provide the other party with a reasonable opportunity to review and comment on such document or as contemplated response, (ii) shall include in such document or response all comments reasonably proposed by any such other provision of this Agreement, unless party and (iii) shall not file or mail such document or respond to the Buyer shall otherwise consent in writingSEC prior to receiving such other party's approval, which consent approval shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitationIf, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof Effective Time, any event occurs with respect to RJR or Section 5.01 any RJR Subsidiary, or any change occurs with respect to other information supplied by RJR for inclusion in the Form S-4 or the Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Proxy Statement, RJR shall promptly notify B&W of such event, and RJR and B&W shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to RJR's stockholders.
(c) If, prior to the Effective Time, any event occurs with respect to the B&W Business (other than with respect to an Excluded Asset or an Excluded Liability), or any change occurs with respect to other information supplied by B&W for inclusion in the Form S-4 or the Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Proxy Statement, B&W shall promptly notify RJR of such event, and B&W and RJR shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to RJR's stockholders.
(d) RJR shall, as soon as reasonably practicable following effectiveness of the Disclosure LetterForm S-4, Parent duly call, give notice of, convene and Rodeo, Inc. covenant and agree that neither hold a meeting of its stockholders (the Company nor any Company Subsidiary "RJR Stockholders Meeting") for the purpose of seeking the RJR Stockholder Approval. RJR shall use its reasonable best efforts to cause the Proxy Statement to be mailed to RJR's stockholders as soon as reasonably practicable after the Form S-4 is declared effective under the Securities Act. RJR shall, between through the date RJR Board, recommend to its stockholders that they give RJR Stockholder Approval, except to the extent that the RJR Board shall have withdrawn or modified its approval or recommendation of this Agreement and or the Closing, directly or indirectly do, or propose to do, any Merger as permitted by Section 5.02(b). Without limiting the generality of the followingforegoing, without RJR agrees that its obligations pursuant to the prior written consent first sentence of Buyer, which consent this Section 6.01(d) shall not be unreasonably withheld or delayed:
affected by (i) amendthe commencement, propose public proposal, public disclosure or communication to amend, RJR of any RJR Takeover Proposal or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, withdrawal or authorize modification by the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any RJR Board of its assets approval or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions recommendation of this Section 5.01;
(xiv) settle Agreement or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingMerger.
Appears in 1 contract
Sources: Business Combination Agreement (Rj Reynolds Tobacco Holdings Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the ClosingSection 7.01 Proxy Statement, Information Statement, Other Filings and Form S-4.
(a) Parent and Rodeo, Inc. covenant and agree that, between As promptly as reasonably practicable following the date of this Agreement Agreement, the Company Parties shall prepare and, once reasonably acceptable to Parent and the time of Company Parties, file with the Closing, except as set forth in Section 5.01 of SEC the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses preliminary Proxy Statement and each of the Company Parties and the Company Subsidiaries Buyer Parties shall, or shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with cause their respective obligations under Affiliates to, prepare and, after consultation with each other, file with the SEC all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions Other Filings that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted filed by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or party in connection with the transactions described contemplated hereby. Each of the Company Parties and Buyer Parties shall furnish all information concerning itself and its affiliates that is required to be included in clause (vi) above;
(xviii) except as provided the Proxy Statement and the Information Statement or, to the extent applicable, the Other Filings, or that is customarily included in proxy statements and information statements prepared in connection with transactions of the type contemplated by this Agreement. Each of the Company Parties and Buyer Parties shall use its commercially reasonable efforts, enter intoafter consultation with the other, amendto respond as promptly as practicable to any comments of the SEC with respect to the Proxy Statement or the Other Filings, terminate and the Company shall use its commercially reasonable efforts to cause (i) the definitive Proxy Statement to be filed with, and cleared by, the SEC, (ii) the Information Statement to be filed with the SEC and (iii) the definitive Proxy Statement and the Information Statement to be mailed to the Company Shareholders and the Operating Trust Unitholders, respectively, as promptly as reasonably practicable following clearance from the SEC of the definitive Proxy Statement. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or waive its staff or any provision of, any agreement request from the SEC or arrangement, its staff for amendments or enter into any transaction, supplements to the Proxy Statement or the Other Filings and shall promptly provide Parent with copies of all correspondence between the Company and/or any Company Subsidiaryand its Representatives, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliatesthe SEC and its staff, on the other hand, which if entered into relating to the Proxy Statement or the Other Filings. If at any time prior to the date hereof would Company Shareholders’ Meeting, any information relating to the Company Parties or the Buyer Parties or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, the Information Statement or the Other Filings, so that the Proxy Statement, the Information Statement or the Other Filings shall not contain any untrue statement of a material fact or omit to state any material fact required to be disclosed pursuant stated therein or necessary in order to Section 3.20;make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the shareholders of the Company. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement, the Information Statement or filing the Other Filings (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in such documents or responses all comments reasonably proposed by Parent, and to the extent practicable, the Company will provide Parent with the opportunity to participate in any substantive calls between the Company, or any of its Representatives, and the SEC concerning the Proxy Statement.
(xixb) materially alter As promptly as reasonably practicable following the date of this Agreement, the Company Parties shall prepare and, once reasonably acceptable to Parent and the Company Parties, file with the SEC the Form S-4 in connection with the registration under the Securities Act of the Series O Preferred Units to be issued in connection with the Operating Trust Merger in accordance with Section 3.02(a), which Form S-4 shall include one or more prospectuses (through mergersuch offers and proxy statements, liquidationtogether with any amendments or supplements thereto, reorganizationthe “S-4 Related Documents”). The Form S-4 shall also contain the information required for the Information Statement. The S-4 Related Documents shall set forth the procedures, restructuringreasonably acceptable to the Company and the Operating Trust, conversion for holders of the Operating Trust Class A-1 Common Units to make an Election, including the deadline for making an Election and the procedures (if any) for revoking an Election. The Company Parties and the Buyer Parties shall cause the Form S-4 and S-4 Related Documents to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the S-4 or S-4 Related Documents and shall promptly provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the S-4 or S-4 Related Documents. If at any time prior to the completion of the Election, any information relating to the Company Parties or the Buyer Parties or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the S-4 or S-4 Related Documents, so that the S-4 or S-4 Related Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the Operating Trust Unitholders. Notwithstanding anything to the contrary stated above, prior to filing the S-4 or S-4 Related Documents (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in such documents or responses all comments reasonably proposed by Parent, and to the extent practicable, the Company will provide Parent with the opportunity to participate in any other fashion) substantive calls between the corporate structure Company, or ownership any of its Representatives, and the SEC concerning the S-4. Each of the Company Parties shall use its commercially reasonable efforts, and the Buyer Parties shall cooperate with the Buyer Parties, to have the Form S-4 declared effective by the SEC as promptly as practicable (including clearing the S-4 Related Documents with the SEC) and kept effective as long as is necessary to complete the Operating Trust Merger and the Election. The Company Parties shall promptly notify Parent, if applicable, of (i) the time when the Form S-4 has become effective, (ii) the filing of any supplement or amendment thereto, (iii) the issuance of any Company Subsidiary other than as contemplated by this Agreement; or
stop order, and (xxiv) enter into any contract, agreement, commitment or arrangement to do any the suspension of the foregoingqualification and registration of the Series O Preferred Unit. The Company Parties also shall use commercially reasonable efforts (including by provision of customary representations and certifications) to cause H▇▇▇▇ & H▇▇▇▇▇▇ LLP or other counsel reasonably satisfactory to Parent to have delivered an opinion, which opinion shall be filed as an exhibit to the Form S-4, as to federal income tax matters as are required to be addressed in the Form S-4. Parent shall use commercially reasonable efforts (including by provision of customary representations and certifications) to cause Wachtell, Lipton, R▇▇▇▇ & K▇▇▇ or other counsel reasonably satisfactory to the Company Parties to have delivered an opinion, which opinion shall be filed with the SEC as an exhibit to the Form S-4, as to federal income tax matters as are required to be addressed in the Form S-4. Such opinions shall contain customary exceptions, assumptions and qualifications and be based upon customary representations. The Operating Trust shall mail the S-4 Related Documents to the Operating Trust Unitholders, as applicable, as promptly as practicable after the Form S-4 shall have become effective.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing.
(a) Blue Sky. Company shall cooperate with Parent and Rodeowith respect to any qualification for exemption from registration under federal securities laws, Inc. covenant and agree thator for qualification or exemption under state securities or "blue sky" laws, between pursued by Parent with respect to the date shares of Parent Common Stock to be issued pursuant to this Agreement and Agreement. Without limiting the time generality of the Closingforegoing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
promptly: (i) provide to Parent all pertinent information concerning the businesses of the Company Company, its capital stock and the Company Subsidiaries shall be conducted only in, Shareholders; and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company promptly review and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company comment on any documents or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practicedrafts supplied by Parent.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior Access to the date hereof or Section 5.01 of the Information; Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:Schedule Updates.
(i) amendUpon reasonable notice, propose Company shall afford Parent and its accountants, counsel and other representatives, reasonable access during normal business hours during the period prior to amend, or otherwise change its Certificate of Limited Partnership the Effective Time or the earlier termination of this Agreement in accordance with its terms, provided that such access does not cause disruption to the day-to-day operation of Company, to (i) all of Company's properties, books, contracts, commitments and records, and (ii) all other information concerning the business, properties and personnel of Company Partnership Agreement or similar organizational documents;as Parent may reasonably request. Company agrees to provide to Parent and its accountants, counsel and other representatives copies of internal financial statements promptly upon request.
(ii) issueSubject to compliance with applicable law, sellfrom the date hereof until the Effective Time or the earlier termination of this Agreement in accordance with its terms, transfer, pledge, dispose of, grant, encumber, amend Company and Parent shall confer on operational matters of materiality and the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance general status of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) ongoing operations of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);Company.
(iii) declareNo information or knowledge obtained in any investigation after the Execution Date pursuant to this Section 6.2 shall affect or be deemed to modify any representation or warranty contained herein or the conditions to the obligations of the parties to consummate the Merger; provided, set asidehowever that Company shall promptly inform Parent of any such information or knowledge obtained in its investigation which would reasonably be likely to have a Company Material Adverse Effect. Additionally, during the period from the date hereof and prior to the Effective Time or the earlier termination of this Agreement in accordance with its terms, Company shall promptly notify Parent in writing of:
(A) the discovery of any event, condition, fact or circumstance which causes, caused, constitutes or constituted a breach of any representation or warranty made by Company in this Agreement or any other agreement contemplated hereby to the extent that such event, condition, fact or circumstance would cause the condition in Section 7.3(a) of this Agreement not to be satisfied;
(B) any material breach of any covenant or obligation by Company; and
(C) any event, condition, fact or circumstance that may make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to the timely satisfaction of any of the Units, the Incentive Distribution Rights, the GP Interest covenants or any other ownership interests, except for (A) dividends and other distributions by direct conditions set forth in this Article VI or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;Article VII impossible or unlikely.
(iv) other than in the case of If any direct event, condition, fact or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business circumstances that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix6.2(c) materially alter (through mergerrequires any material change in Company's Disclosure Schedule, liquidationor if any such event, reorganizationcondition, restructuring, conversion fact or in any other fashion) the corporate structure or ownership circumstance would require such a change assuming Company's Disclosure Schedule were dated as of the date of the occurrence, existence or discovery of such event, condition, fact or circumstances, then Company shall promptly deliver to Parent an update to its Disclosure Schedule specifying such change (a "Disclosure Schedule Update"). Notwithstanding anything therein to the contrary, no such update shall be deemed to supplement or any Company Subsidiary other than as contemplated by this Agreement; or
amend Company's Disclosure Schedule for the purpose of (xxA) enter into any contract, agreement, commitment or arrangement to do determining the accuracy of any of the foregoingrepresentations and warranties made by such party in this Agreement, or (B) determining whether any of the conditions set forth in Article VII has been satisfied.
(v) Company shall provide Parent and its accountants, counsel and other representatives reasonable access, during normal business hours during the period prior to the Effective Time, to all of Company's Tax Returns and other records and workpapers relating to Taxes, provided that such access does not cause disruption to the day-to-day operation of Company, and shall provide to Parent and its representatives the following information promptly upon the request of Parent: (i) the types of Tax Returns being filed by Company in each taxing jurisdiction, (ii) the year of the commencement of the filing of each such type of Tax Return, (iii) all closed years with respect to each such type of Tax Return filed in each jurisdiction, (iv) all material Tax elections filed in each jurisdiction by Company, (v) any deferred intercompany gain with respect to transactions to which Company has been a party, and (vi) receipts for any Taxes paid to foreign Tax authorities.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing.
(a) Parent Section 7.01 Proxy Statement, Information Statement, Other Filings and Rodeo, Inc. covenant and agree that, between Form S-4As promptly as reasonably practicable following the date of this Agreement Agreement, the Company Parties shall prepare and, once reasonably acceptable to Parent and the time of Company Parties, file with the Closing, except as set forth in Section 5.01 of SEC the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses preliminary Proxy Statement and each of the Company Parties and the Company Subsidiaries Buyer Parties shall, or shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with cause their respective obligations under Affiliates to, prepare and, after consultation with each other, file with the SEC all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions Other Filings that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted filed by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or party in connection with the transactions described contemplated hereby. Each of the Company Parties and Buyer Parties shall furnish all information concerning itself and its affiliates that is required to be included in clause (vi) above;
(xviii) except as provided the Proxy Statement and the Information Statement or, to the extent applicable, the Other Filings, or that is customarily included in proxy statements and information statements prepared in connection with transactions of the type contemplated by this Agreement. Each of the Company Parties and Buyer Parties shall use its commercially reasonable efforts, enter intoafter consultation with the other, amendto respond as promptly as practicable to any comments of the SEC with respect to the Proxy Statement or the Other Filings, terminate and the Company shall use its commercially reasonable efforts to cause (i) the definitive Proxy Statement to be filed with, and cleared by, the SEC, (ii) the Information Statement to be filed with the SEC and (iii) the definitive Proxy Statement and the Information Statement to be mailed to the Company Shareholders and the Operating Trust Unitholders, respectively, as promptly as reasonably practicable following clearance from the SEC of the definitive Proxy Statement. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or waive its staff or any provision of, any agreement request from the SEC or arrangement, its staff for amendments or enter into any transaction, supplements to the Proxy Statement or the Other Filings and shall promptly provide Parent with copies of all correspondence between the Company and/or any Company Subsidiaryand its Representatives, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliatesthe SEC and its staff, on the other hand, which if entered into relating to the Proxy Statement or the Other Filings. If at any time prior to the date hereof would Company Shareholders’ Meeting, any information relating to the Company Parties or the Buyer Parties or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, the Information Statement or the Other Filings, so that the Proxy Statement, the Information Statement or the Other Filings shall not contain any untrue statement of a material fact or omit to state any material fact required to be disclosed pursuant stated therein or necessary in order to Section 3.20;
make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the shareholders of the Company. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement, the Information Statement or filing the Other Filings (xixor any amendment or supplement thereto) materially alter (through mergeror responding to any comments of the SEC with respect thereto, liquidationthe Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in such documents or responses all comments reasonably proposed by Parent, reorganizationand to the extent practicable, restructuring, conversion or the Company will provide Parent with the opportunity to participate in any substantive calls between the Company, or any of its Representatives, and the SEC concerning the Proxy Statement. As promptly as reasonably practicable following the date of this Agreement, the Company Parties shall prepare and, once reasonably acceptable to Parent and the Company Parties, file with the SEC the Form S-4 in connection with the registration under the Securities Act of the Series O Preferred Units to be issued in connection with the Operating Trust Merger in accordance with Section 3.02(a), which Form S-4 shall include one or more prospectuses (such offers and proxy statements, together with any amendments or supplements thereto, the “S-4 Related Documents”). The Form S-4 shall also contain the information required for the Information Statement. The S-4 Related Documents shall set forth the procedures, reasonably acceptable to the Company and the Operating Trust, for holders of the Operating Trust Class A-1 Common Units to make an Election, including the deadline for making an Election and the procedures (if any) for revoking an Election. The Company Parties and the Buyer Parties shall cause the Form S-4 and S-4 Related Documents to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the S-4 or S-4 Related Documents and shall promptly provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC and its staff, on the other fashionhand, relating to the S-4 or S-4 Related Documents. If at any time prior to the completion of the Election, any information relating to the Company Parties or the Buyer Parties or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the S-4 or S-4 Related Documents, so that the S-4 or S-4 Related Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the Operating Trust Unitholders. Notwithstanding anything to the contrary stated above, prior to filing the S-4 or S-4 Related Documents (or any amendment or supplement thereto) or responding to any comments of the corporate structure SEC with respect thereto, the Company shall provide Parent a reasonable opportunity to review and comment on such document or ownership response and will include in such documents or responses all comments reasonably proposed by Parent, and to the extent practicable, the Company will provide Parent with the opportunity to participate in any substantive calls between the Company, or any of its Representatives, and the SEC concerning the S-4. Each of the Company Parties shall use its commercially reasonable efforts, and the Buyer Parties shall cooperate with the Buyer Parties, to have the Form S-4 declared effective by the SEC as promptly as practicable (including clearing the S-4 Related Documents with the SEC) and kept effective as long as is necessary to complete the Operating Trust Merger and the Election. The Company Parties shall promptly notify Parent, if applicable, of (i) the time when the Form S-4 has become effective, (ii) the filing of any supplement or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.amendment thereto,
Appears in 1 contract
Sources: Merger Agreement
Additional Agreements. SECTION 5.01 Conduct Section 7.1 Preparation of Business Prior to the ClosingForm S-4.
(a) Parent and Rodeo, Inc. covenant and agree that, between As promptly as practicable following the date of this Agreement Agreement, Parent shall prepare and as promptly as practicable following the performance of the covenant contained in Section 7.9(c) hereof Parent shall file with the SEC the Form S-4. Parent shall use all reasonable efforts to have the Form S-4, declared effective under the Securities Act as promptly as practicable after such filing.
(b) Each of the Company, Majority Shareholder and Parent covenants that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Form S-4 will, at the time the Form S-4 is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the Closingcircumstances under which they are made, except not misleading. The Form S-4 will comply as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply form in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and the requirements of the Securities Act. Notwithstanding the foregoing, no representation or covenant is made by Parent with their respective obligations under applicable Law; and
(iv) respect to statements made or incorporated by reference based on information supplied in writing by the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated or Majority Shareholder for inclusion or incorporation by this Agreement, or as reflected reference in the Company SEC Reports filed Form S-4. If at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent Effective Time there shall not be unreasonably withheld or delayed:
occur (i) amend, propose any event with respect to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any of its Subsidiaries, or with respect to other information supplied by Company Subsidiary or Majority Shareholder for inclusion in the Form S-4 or (ii) any event with respect to Parent which event is required to be described in an amendment of, or a supplement to the Form S-4, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by applicable federal securities laws, disseminated to the shareholders of Company.
(c) Parent shall promptly notify the Company of the receipt of any class, comments from the SEC or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest its staff or any other ownership interests (including, without limitation, appropriate government official and of any phantom interest, general partnership interest requests by the SEC or limited partnership interest) of the Company its staff or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make appropriate government official for amendments or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect supplements to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance filings with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or SEC in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate Merger and other Transaction or waive any provision of, any agreement or arrangement, or enter into any transaction, between for additional information and shall supply the Company and/or with copies of all correspondence between Parent or any Company Subsidiaryof its representatives, on the one hand, and the SEC or its staff or any of their respective officers, directors, unitholders, owners or Affiliatesother appropriate government official, on the other hand, which if entered into prior with respect thereto. Parent shall use their respective reasonable efforts to respond to any comments of the SEC with respect to the date hereof would be required Form S-4 as promptly as practicable (and to be disclosed pursuant the extent that Parent's ability to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) so respond depends upon the corporate structure or ownership response of the Company or Majority Shareholder, in turn, the Company and Majority Shareholder each agrees to use its reasonable efforts to permit Parent to so respond). The Company and Majority Shareholder shall provide Parent with all information necessary in order to prepare the Form S-4 and any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into information such party may obtain that could necessitate amending any contract, agreement, commitment or arrangement to do any of the foregoingForm S-4.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Trendwest Resorts Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.1 PREPARATION OF THE PROXY STATEMENT AND SCHEDULE 13E-3.
(a) Parent The Company shall as promptly as practicable prepare and Rodeofile a proxy or information statement relating to the Stockholders' Meeting (together with all amendments, Inc. covenant supplements and agree thatexhibits thereto, between the date "Proxy Statement") with the SEC and will diligently respond to any comments of this Agreement the SEC or its staff and cause the Proxy Statement to be mailed to the Company's stockholders at the earliest practical time. The Company shall use its best efforts to obtain from the Financial Advisor an opinion (that shall not at the time of the Closing, except as set forth in Section 5.01 mailing of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless Proxy Statement to the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses stockholders of the Company and be subject to adverse comment by the Company Subsidiaries shall be conducted only in, and SEC) as to the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services fairness of the current employees of Rodeo, Inc. transactions contemplated hereby and to preserve cause the current relationships same to be reproduced and furnished to its stockholders in connection with the Proxy Statement. The Company will notify Levy Acquisition Co. promptly of the Company receipt of any comments from the SEC or its staff and of any request by the Company Subsidiaries SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Levy Acquisition Co. with customers, contractholders and other Persons with whom copies of all correspondence between the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiaryrepresentatives, on the one hand, and any of their respective officers, directors, unitholders, owners the SEC or Affiliatesits staff, on the other hand, which if entered into with respect to the Proxy Statement or the Merger. If at any time prior to the date hereof would Stockholders' Meeting there shall occur any event that the Company determines must or should be set forth in an amendment or supplement to the Proxy Statement, the Company will promptly prepare and mail to its stockholders such an amendment or supplement. The Company will not mail any Proxy Statement, or any amendment or supplement thereto, to which Levy Acquisition Co. reasonably objects. The Company hereby consents to the inclusion in the Proxy Statement of the recommendation of the Board described in Section 5.2, subject to any modification, amendment or withdrawal thereof, and represents that the Independent Advisor has, subject to the terms of its engagement letter with the Company, consented to the inclusion of references to its opinion in the Proxy Statement.
(b) The Company and Levy Acquisition Co. shall together prepare and file a Transaction Statement on Schedule 13E-3 (together with all amendments and exhibits thereto, the "Schedule 13E-3") under the Exchange Act. Levy Acquisition Co. shall furnish all information concerning it, its affiliates and the holders of its capital stock required to be disclosed pursuant included in the Schedule 13E-3 and, after consultation with each other, shall respond promptly to Section 3.20;
(xix) materially alter (through mergerany comments made by the SEC with respect to the Schedule 13E-3. As part of the disclosures required to be included in the Schedule 13E-3 with respect to Levy Acquisition Co., liquidation, reorganization, restructuring, conversion or in any other fashion) Levy Acquisition Co. shall state that it believes the corporate structure or ownership Merger Consideration is fair to all of the stockholders of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingLevy Stockholders.
Appears in 1 contract
Sources: Merger Agreement (Oriole Homes Corp)
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; Shareholders' Meetings.
(a) As promptly as practicable after the execution of this Agreement, (i) Parent and Rodeothe Company shall prepare and file with the SEC the proxy statement (as amended or supplemented from time to time, Inc. covenant and agree that, between the date "Proxy Statement") to be sent to the shareholders of the Company relating to the meeting of the Company's shareholders (the "Company Shareholders' Meeting") to be held to consider approval of this Agreement and to be sent to the stockholders of Parent relating to the meeting of Parent's stockholders to be held to vote on the Amendment and Share Issuance (the "Parent Stockholders' Meeting" and, together with the Company Shareholders' Meeting, the "Shareholders' Meetings") and (ii) Parent shall prepare and file with the SEC a registration statement on Form S 4 (as amended or supplemented from time to time, the "Form S-4"), in which the Proxy Statement will be included as a prospectus, in connection with the registration under the Securities Act of the Closing, except as set forth shares of Parent Common Stock to be issued in Section 5.01 the Share Issuance. Each of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company Parent and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use its reasonable best efforts to preserve substantially intact their business organizationhave the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and, prior to keep available the services effective date of the current employees Form S-4, Parent shall take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of Rodeo, Inc. and process) required to preserve be taken under any applicable state securities Laws in connection with the current relationships issuance of shares of Parent Common Stock in the Company Merger. Each of Parent and the Company Subsidiaries shall furnish all information as may be reasonably requested by the other in connection with customersany such action and the preparation, contractholders filing and other Persons with whom distribution of the Company or any Company Subsidiary has significant business relations;
(iii) Form S-4 and the Company Proxy Statement. As promptly as practicable after the Form S-4 shall have become effective, each of Parent and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their its reasonable best efforts to continue in force with good cause the Proxy Statement to be mailed to its respective shareholders and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreementstockholders. No filing of, or as reflected amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to, the Proxy Statement will made by the Company, in each case without providing the Company SEC Reports filed other party a reasonable opportunity to review and comment thereon. If at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor Effective Time any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose information relating to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any classParent, or any optionsof their respective Affiliates, warrantsdirectors or officers, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of should be discovered by the Company or Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, so that either such document would not include any Company Subsidiarymisstatement of a material fact or omit to state any material fact necessary to make the statements therein, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any light of the Unitscircumstances under which they are made, not misleading, the Incentive Distribution Rightsparty which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms extent required by Law, disseminated to the shareholders of the Company Partnership Agreement;
(iv) Company. The parties shall notify each other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any promptly of the Unitstime when the Form S-4 has become effective, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units stop order or any other ownership interests suspension of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution qualification of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or Parent Common Stock issuable in connection with the transactions described Merger for offering or sale in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangementjurisdiction, or enter into of the receipt of any transaction, comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of (i) all correspondence between the Company and/or it or any Company Subsidiaryof its Representatives, on the one hand, and any the SEC or the staff of their respective officers, directors, unitholders, owners or Affiliatesthe SEC, on the other hand, which if entered into with respect to the Proxy Statement, the Form S-4 or the Merger and (ii) all orders of the SEC relating to the Form S-4.
(b) The Company shall use its reasonable best efforts to, as promptly as practicable, establish a record date for, duly call, give notice of, convene and hold the Company Shareholders' Meeting solely for the purpose of obtaining the Company Shareholder Approval. Subject to Section 4.02, the Company shall, through its Board of Directors, recommend to its shareholders approval of this Agreement and shall include such recommendation in the Proxy Statement. Without limiting the generality of the foregoing, but subject to the terms of this Agreement, the Company's obligations pursuant to the first sentence of this Section 5.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Takeover Proposal.
(c) Parent shall use its reasonable best efforts to, as promptly as practicable, establish a record date for, duly call, give notice of, convene and hold the Parent Stockholders' Meeting solely for the purpose of obtaining the Parent Stockholder Approval. Parent shall, through its Board of Directors, recommend to its stockholders that they vote in favor of the Amendment and Share Issuance and shall include such recommendation in the Proxy Statement (the "Parent Recommendation"). The Board of Directors of Parent shall not withdraw (or modify in a manner adverse to the Company), or publicly propose to withdraw (or modify in a manner adverse to the Company), the Parent Recommendation; provided, however, that none of the following shall constitute a breach of this Section 5.01(c): (1) the disclosure by the Board of Directors of Parent or Parent of any factual information to the stockholders of Parent that is required to be made to such stockholders under applicable Law or (ii) the disclosure to such stockholders of any conclusions that would have been made by the Board of Directors of Parent based on such information had such information existed on or prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Guidant Corp)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing6.1 PREPARATION OF PROXY STATEMENT; STOCKHOLDER MEETING; COMFORT LETTERS.
(a) Parent and Rodeo, Inc. covenant and agree that, between Promptly following the date of this Agreement, the Company shall prepare the Schedule 13E-3 with respect to the transactions contemplated by this Agreement and a proxy statement (the time "Proxy Statement") required to be distributed to holders of Common Stock in connection with the Merger and include therein the recommendation of the Closing, except as set forth in Section 5.01 Company Board that the stockholders of the Disclosure Letter or as contemplated by any other provision Company vote in favor of the approval and adoption of this AgreementAgreement and include therein the written opinion of the Financial Adviser that the cash consideration to be received by the stockholders of the Company pursuant to the Merger is fair, unless from a financial point of view, to such stockholders; provided, however, that the Buyer Company Board may fail to make or may withdraw or modify such recommendation, if, in accordance with Section 5.1, the Company Board recommends a Superior Proposal. The Company shall otherwise consent use its reasonable best efforts to obtain and furnish the information required to be included by it in writingthe Proxy Statement and Schedule 13E-3 and, which consent after consultation with ERP, respond promptly to any comments made by the Securities and Exchange Commission (the "SEC") with respect to the Proxy Statement and Schedule 13E-3 and any preliminary version thereof, ERP and Newco will cooperate with the Company in connection with the preparation of the Proxy Statement and Schedule 13E-3 including, but not limited to, furnishing to the Company any and all information regarding ERP as may be required to be disclosed therein. The Company will use reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable.
(b) All filings with the SEC and all mailings to the Company's stockholders in connection with the Merger, including the Proxy Statement and Schedule 13E-3, shall be subject to the prior review, comment and approval of ERP and Newco (and such approval shall not be unreasonably withheld or delayed:).
(ic) The Company shall, as promptly as practicable following the businesses date of this Agreement and in consultation with ERP and Newco, duly call and give notice of, and, provided that this Agreement has not been terminated, convene and hold, the Company Stockholders' Meeting for the purpose of approving this Agreement and the transactions contemplated by this Agreement to the extent required by Ohio Law (the "Company Subsidiaries shall be conducted only inStockholders' Meeting"). The Company will use reasonable best efforts to hold such meeting as soon as practicable after the date hereof.
(d) Upon the request of ERP, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their cause to be delivered to the Company and ERP a letter of PricewaterhouseCoopers LLP, the Company's independent public accountants, dated a date within two (2) business organization, days before the date of mailing the Proxy Statement to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships stockholders of the Company and a letter of PricewaterhouseCoopers LLP dated a date within two (2) business days before the Company Subsidiaries with customersStockholders' Meeting, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary addressed to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against each case customary in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or scope and substance for letters delivered by independent public accountants in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior proxy statements similar to the date hereof would Proxy Statement; provided, however, that such letters shall only be required delivered to be disclosed pursuant the extent permitted under accounting principles and pronouncements applicable to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingU.S. accounting profession.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.1. PREPARATION OF FORM S-4 AND THE JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) Parent and Rodeo, Inc. covenant and agree that, between Promptly following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and Purchaser shall prepare and file with the Company Subsidiaries shall be conducted only inSEC the Joint Proxy Statement, and Purchaser shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Purchaser shall use its reasonable best efforts to preserve substantially intact their business organization, to keep available have the services Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall Purchaser will use their its reasonable best efforts to continue cause the Joint Proxy Statement to be mailed to its stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Purchaser shall also take any action (other than qualifying to do business in force any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities law in connection with good the Share Issuance, and responsible insurance companies adequate insurance covering risks Company shall furnish all information concerning Company and the holders of Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Option Plans as may be reasonably required in connection with any such types action. Each of Purchaser and Company shall furnish all information concerning itself to the other as may be reasonably requested in connection with any such amounts as are consistent with past practiceaction and the preparation, filing and distribution of the Form S-4 and the preparation, filing and distribution of the Joint Proxy Statement. Company, Purchaser and Merger Sub each agree to promptly correct any information provided by it for use in the Form S-4 or the Joint Proxy Statement that shall have become false or misleading.
(b) By way Company, acting through its Board of amplification Directors, shall, subject to and not limitationin accordance with its articles of incorporation and by-laws, except promptly and duly call, give notice of, convene and hold as contemplated by soon as practicable following the date upon which the Form S-4 becomes effective a meeting of the holders of Company Common Stock (the "COMPANY STOCKHOLDERS MEETING") for the purpose of voting to approve this Agreement, or and (i) except as reflected otherwise provided in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letterfollowing sentence, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date recommend approval of this Agreement and include in the ClosingJoint Proxy Statement such recommendation and (ii) use its reasonable best efforts to solicit and obtain such approval. In the event that prior to the approval of this Agreement by the Company's stockholders, directly the Board of Directors of Company receives a Superior Proposal (as defined in Section 8.13) and the Board of Directors of Company determines in good faith by resolution duly adopted after consultation with its outside counsel that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under Virginia law, the Board of Directors of Company may withdraw, amend or indirectly domodify, in a manner adverse to Purchaser, its recommendation, PROVIDED that before withdrawing, amending or modifying its recommendation, it gives Purchaser five business days' prior written notice of its intention to do so and during such time, Company, if requested by Purchaser, shall have engaged in good faith negotiations to amend this Agreement such that the Board of Directors of Company may continue to recommend the approval of this Agreement. The parties agree that nothing in this Section 5.1 shall in any way limit or otherwise affect Purchaser's right to terminate this Agreement pursuant to Section 7.1(c) at such time as the requirements of such subsection have been met. Any such withdrawal, amendment or modification of the recommendation shall not (x) change the adoption of this Agreement or any other approval of the Board of Directors of Company in any respect that would have the effect of causing the threshold restrictions on Company Common Stock ownership in Company's articles of incorporation, the Company Rights Agreement and any Virginia corporate takeover statute or other similar statute to be applicable to the transactions contemplated hereby, including the Merger, or propose the transactions contemplated by the Option Agreement, or (y) change the obligation of Company to dopresent this Agreement for approval at the Company Stockholders Meeting on the earliest practicable date. At any such meeting following any withdrawal, any amendment or modification of Company's recommendation of this Agreement, Company may submit this Agreement to its stockholders without recommendation (although the adoption of this Agreement by the Board of Directors of Company may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to its stockholders in the Joint Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law. Nothing contained in this Agreement shall prohibit Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making disclosure of the followingfact that a proposal for an Alternative Transaction has been made, without the prior written consent identity of Buyerthe party making the proposal or the material terms of such proposal in the Form S-4 or the Joint Proxy Statement, which consent to the extent disclosure of such facts, identity or terms is advisable under applicable law (and the disclosure of such facts, by itself, shall not be unreasonably withheld deemed a withdrawal or delayed:adverse modification or amendment of its approval or recommendation to stockholders of the Merger).
(ic) amendDuring the term of this Agreement, propose Company shall not take any actions to amendexempt any Person other than Purchaser and Merger Sub from the Company Rights Agreement, the threshold restrictions on Company Common Stock ownership in Company's articles of incorporation, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement make any Virginia state takeover statute or similar organizational documents;statute inapplicable to any Alternative Transaction unless, in any such case, the Board of Directors of Company determines in good faith after consultation with its outside counsel that failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under Virginia law.
(iid) issue, sell, transfer, pledge, dispose of, grant, encumber, amend Company will cause its transfer agent to make stock transfer records relating to Company available to the terms of, or authorize extent reasonably necessary to effectuate the issuance, sale, pledge, disposition, grant or Encumbrance intent of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);this Agreement.
(iiie) declarePurchaser, set asideacting through its Board of Directors, make or pay any dividend or other distribution payable in cashshall, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions its articles of this Section 5.01;
(xiv) settle or compromise any material Auditincorporation and by-laws, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would promptly and duly call, give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision notice of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, convene and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to hold as soon as practicable following the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through mergeron which the Form S-4 becomes effective, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership a meeting of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
holders of Purchaser Common Stock (xxthe "PURCHASER STOCKHOLDERS MEETING") enter into any contract, agreement, commitment or arrangement for the purpose of voting to do any of approve the foregoing.Share
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct Section 6.1 Preparation of Business Prior to Form S-4 and the ClosingProxy Statement; Stockholder Meeting.
(a) As promptly as practicable after the execution of this Agreement, the Company and Parent shall cooperate with each other regarding, and, prepare and file with the SEC, the Proxy Statement/Prospectus and Parent shall prepare and file the Registration Statement (in which the Proxy Statement/Prospectus will be included). The Company and Parent will cause the Proxy Statement/Prospectus and the Registration Statement to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations thereunder. Each of Parent and Rodeothe Company shall use all reasonable efforts to have or cause the Proxy Statement/Prospectus to be cleared by the SEC and to cause the Registration Statement to become effective as promptly as practicable. Without limiting the generality of the foregoing, Inc. covenant each of the Company and agree thatParent shall cause its respective Representatives to fully cooperate with the other Party and its respective Representatives in the preparation of the Proxy Statement/Prospectus and the Registration Statement, between and shall, upon request, furnish the other Party with all information concerning it and its Affiliates as the other may deem reasonably necessary or advisable in connection with the preparation of the Proxy Statement/Prospectus and the Registration Statement. The Company hereby agrees that the recommendations of the Company Board described in Section 3.19 (subject to the right of the Company Board to withdraw, amend or modify such recommendation in accordance with Section 6.3) shall be included in the Registration Statement and the Proxy Statement/Prospectus. Parent shall use commercially reasonable best efforts to take all actions required under any applicable federal or state securities or Blue Sky Laws in connection with the issuance of shares of Parent Common Stock pursuant to the Merger, if any, and will pay all filing fees incident thereto. As promptly as practicable after the Registration Statement becomes effective, the Company shall cause the Proxy Statement/Prospectus to be mailed to its stockholders.
(b) The Company and Parent each agrees that none of the information supplied by it or its Subsidiaries to be included or incorporated by reference in the Proxy Statement/Prospectus or any amendment thereof or supplement thereto, will, on the date of this Agreement the mailing of the Proxy Statement/Prospectus or any amendment or supplement thereto, and at the time of the ClosingCompany Stockholders Meeting, except as set forth contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in Section 5.01 order to make the statements therein, in light of the Disclosure Letter circumstances under which they are made, not misleading. The Company and Parent each agrees that none of the information supplied by it or as contemplated its Subsidiaries to be included or incorporated by reference in the Registration Statement will, at the time the Registration Statement becomes effective under the Securities Act, contain any other provision untrue statement of this Agreementa material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, unless in light of the Buyer shall otherwise consent in writingcircumstances under which they are made, which consent shall not be unreasonably withheld or delayed:misleading.
(c) Without limiting the generality of the foregoing, prior to the Effective Time (i) the businesses of the Company and Parent shall notify each other as promptly as practicable upon becoming aware of any event or circumstance which should be described in an amendment of, or supplement to, the Company Subsidiaries shall be conducted only inProxy Statement/Prospectus or the Registration Statement, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and Parent shall each notify the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available other as promptly as practicable after the services receipt by it of any written or oral comments of the current employees SEC on, or of Rodeoany written or oral request by the SEC for amendments or supplements to, Inc. the Proxy Statement/Prospectus or the Registration Statement, and to preserve shall promptly supply the current relationships other with copies of the Company all correspondence between it or any of its Representatives and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Unitsforegoing filings.
(d) The Company shall take all action necessary to duly call the Company Stockholders Meeting, to be held as promptly as practicable for the Incentive Distribution Rights, purpose of voting upon the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms approval of the Company Partnership Agreement;
(iv) other than in Voting Proposal. Subject to the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests right of the Company Board to withdraw, amend or any modify such recommendation in accordance with Section 6.3, the Company Subsidiary in respect ofshall, in lieu ofthrough its board of directors, or in substitution recommend to its stockholders adoption of this Agreement and approval of the UnitsMerger and related matters, and the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests Company shall use its best efforts to solicit from its stockholders proxies in favor of the Company or any Voting Proposal. Without limiting the generality of the foregoing, the Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions agrees that its obligations pursuant to this subsection (vi);
(viiSection 6.1(d) except for Permitted Encumbrances to timely call and conduct the Company Stockholders Meeting shall not be affected by the commencement, public proposal or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material communication to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingAcquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Kimco Realty Corp)
Additional Agreements. SECTION 5.01 Conduct 6.01. Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement, Parent and the Company shall prepare and the Company shall file with the SEC the Proxy Statement and Parent and the Company shall prepare and Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus with respect to the issuance of Parent Shares in the Merger. Parent shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Shares in the Merger, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the Proxy Statement. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form S-4 will be made by Parent, or the Proxy Statement will be made by the Company, without providing the other party a reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of Parent Shares issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. The Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company.
(b) The Company shall take all action necessary under all applicable laws to call, give notice of and hold a meeting of the holders of Company Common Stock to vote on a proposal to adopt this Agreement and approve the time Merger (the "Stockholders Meeting"). The Stockholders Meeting shall be held (on a date selected by the Company in consultation with Parent) as promptly as practicable after the Form S-4 is declared effective under the Securities Act. The Company shall ensure that all proxies solicited in connection with the Stockholders Meeting are solicited in compliance with all applicable laws. Notwithstanding the foregoing provisions of Section 6.01(a) and (b) Parent shall have the right to delay (i) the effectiveness of the ClosingS-4 and/or (ii) date of the Stockholders Meeting if the condition to the parties obligation to close the Merger contained in Section 7.01(b) shall not be fulfilled.
(c) Subject to Section 6.01(d): (i) the Proxy Statement shall include a statement to the effect that the Board of Directors of the Company recommends that the Company's stockholders vote to adopt this Agreement at the Stockholders Meeting (the recommendation of the Company's Board of Directors that the Company's stockholders vote to adopt this Agreement being referred to as the "Company Board Recommendation"); and (ii) the Company Board Recommendation shall not be withdrawn or modified in a manner adverse to Parent, except as and no resolution by the Board of Directors of the Company or any committee thereof to withdraw or modify the Company Board Recommendation in a manner adverse to Parent shall be adopted or proposed.
(d) Notwithstanding anything to the contrary contained in Section 6.01(c), at any time prior to the adoption of this Agreement by the requisite Stockholder Approval, the Company Board Recommendation may be withdrawn or modified in a manner adverse to Parent if: (i) a proposal to acquire (by merger or otherwise) more than fifty percent of the outstanding shares of Company Common Stock is made to the Company and is not withdrawn; (ii) the Company provides Parent with at least two business days prior notice of any meeting of the Company's Board of Directors at which such Board of Directors will consider and determine whether such offer is a Superior Proposal; (iii) the Company's Board of Directors determines in good faith (based upon an opinion of an independent financial advisor of nationally recognized reputation) that such offer constitutes a Superior Proposal; (iv) the Company's Board of Directors determines in good faith, after having taken into account the written advice of the Company's outside legal counsel, that, in light of such Superior Proposal, the withdrawal or modification of the Company Board Recommendation is required in order for the Company's Board of Directors to comply with its fiduciary obligations to the Company's stockholders under applicable law; and (v) neither the Company nor any of its Representatives shall have violated any of the restrictions set forth in Section 5.01 5.04 in any material respect.
(e) The Company's obligation to call, give notice of and hold the Stockholders Meeting in accordance with Section 6.01(b) shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission of any Superior Proposal or other Acquisition Proposal, or by any withdrawal or modification of the Disclosure Letter or as contemplated by any other provision of Company Board Recommendation.
(f) Notwithstanding anything to the contrary contained in this Agreement, unless if the Buyer Company Board Recommendation shall otherwise consent be withdrawn or modified in writinga manner adverse to Parent, which consent shall not be unreasonably withheld or delayedthen, at the request of Parent:
(i) the businesses Company shall call, give notice of and hold the Company Stockholders Meeting on a date and the Company Subsidiaries shall be conducted only in, at a time and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of businessplace determined by Parent;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts set a record date for persons entitled to preserve substantially intact their business organizationnotice of, to keep available the services of the current employees of Rodeo, Inc. and to preserve vote at, the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relationsStockholders Meeting;
(iii) the Company shall cause its transfer agent to make a stockholder list and other stock transfer records relating to the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; andavailable to Parent;
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor waive any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement standstill or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind provisions applicable to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interestsParent;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests a copy of the opinion of Company or any Financial Advisor shall be included in the Proxy Statement, provided that the Proxy Statement may also include such additional disclosure regarding such opinion as Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;Financial Advisor may reasonably request; and
(vi) acquire or agree the Company shall render such other reasonable assistance to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 Parent in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required solicitation of proxies by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are Parent in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms favor of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions adoption of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each Agreement as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingParent shall request.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to the ClosingForm S-4 and the Joint Proxy Statement; Stockholders Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless i-Cube and Razorfish shall prepare and file with the Buyer SEC the Joint Proxy Statement and Razorfish shall otherwise consent prepare and file with the SEC the Form S-4, in writing, which consent the Joint Proxy Statement will be included as a prospectus. Each of i-Cube and Razorfish shall not use reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. i-Cube will use all reasonable efforts to cause the Joint Proxy Statement to be unreasonably withheld or delayed:
(mailed to i) -Cube's stockholders as promptly as practicable after the businesses of Form S-4 is declared effective under the Company and Securities Act. Razorfish will use all reasonable efforts to cause the Company Subsidiaries Joint Proxy Statement to be mailed to Razorfish's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Razorfish shall be conducted only in, and the Company and the Company Subsidiaries shall not also take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect qualifying to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest do business in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 jurisdiction in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that which it is not (inow so qualified or to file a general consent to service of process) currently conducted, (ii) currently contemplated required to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in taken under any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar applicable state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or securities laws in connection with the transactions described issuance of Razorfish Common Stock in clause (vi) above;
(xviii) except the Merger and i-Cube shall furnish all information concerning i-Cube and the holders of i-Cube Common Stock as provided may be reasonably requested in this Agreement, enter into, amend, terminate or waive connection with any provision such action. No filing of, any agreement or arrangementamendment or supplement to, the Form S-4 will be made by Razorfish, or enter into any transactionthe Joint Proxy Statement will be made by either Razorfish or i-Cube, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on without providing the other handparty the opportunity to review and comment thereon. Razorfish will advise i-Cube, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through mergerpromptly after it receives notice thereof, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company time when the Form S-4 has become effective or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contractsupplement or amendment has been filed, agreement, commitment or arrangement to do any of the foregoing.issuance
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct Section 6.1 Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement/Prospectus; Company Shareholder Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As promptly as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
prepare (iwith Parent’s reasonable cooperation) the businesses Proxy Statement/Prospectus and Parent shall prepare (with the Company’s reasonable cooperation) and file with the SEC the Form S-4. Each of the Company and Parent shall use its reasonable best efforts to respond as promptly as practicable to any written or oral comments from the SEC or its staff with respect to the Proxy Statement/Prospectus, the Form S-4 or any related matters. The Proxy Statement/Prospectus will be included within the Form S-4 filed with the SEC. Each of the Company Subsidiaries and Parent shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act and to maintain such effectiveness for as long as necessary to consummate the Merger and the other transactions contemplated by this Agreement as promptly as practicable after such filing. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be conducted only in, taken under any applicable state securities or “blue sky” laws in connection with the issuance of Parent Shares in the Merger as contemplated by this Agreement and the Company shall furnish all information concerning the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships holders of the Company Common Stock and rights to acquire Company Common Stock as may be reasonably requested in connection with any such action and in connection with the Company Subsidiaries with customerspreparation, contractholders filing and other Persons with whom distribution of the Form S-4. If at any time prior to the Effective Time any event occurs or information relating to the Company or Parent, or any Company Subsidiary has significant business relations;
(iii) of their respective Affiliates, directors or officers, should be discovered by the Company or Parent that should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement/Prospectus, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable Law, disseminated to the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceShareholders.
(b) By way of amplification In addition to their obligations pursuant to Section 6.1(a), Parent and not limitation, except as the Company shall make all necessary filings with respect to the Merger and the other transactions contemplated by this AgreementAgreement under the Securities Act, the Exchange Act and applicable foreign or state securities or “blue sky” laws and Regulations thereunder and provide each other with copies of any such filings. Parent and the Company shall advise the other party, promptly after receipt of notice thereof, of (and provide copies of any notices or communications with respect to) the time of the effectiveness of the Form S-4, the filing of any supplement or amendment thereto, the issuance of any stop order relating thereto, the suspension of the qualification of Parent Shares issuable in connection with the Merger for offering or sale in any jurisdiction, or as reflected in of any request by the Company SEC Reports filed prior or its staff for amendment to the date hereof Proxy Statement/Prospectus or Section 5.01 the Form S-4, comments thereon from the SEC’s staff and each party’s responses thereto or request of the Disclosure Letter, SEC or its staff for additional information. No amendment or supplement to the Proxy Statement/Prospectus or the Form S-4 shall be filed without the approval of each of Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of BuyerCompany, which consent approval shall not be unreasonably withheld withheld, delayed or delayed:conditioned.
(c) The Company shall (i) amendtake all action in accordance with the federal securities laws, propose to amendthe VSCA, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement Certificate and the Company Bylaws necessary to convene a special meeting of the Company Shareholders (the “Company Shareholders Meeting”) for the purpose of seeking the Company Shareholder Approval (and any authority needed to adjourn or similar organizational documents;
postpone the Company Shareholders Meeting) following (x) the date the Form S-4 is declared effective under the Securities Act and (y) the expiration or termination of the waiting period under the HSR Act; provided that no action is pending by any Governmental Entity seeking to enjoin or prevent the consummation of the Merger under Antitrust Law (such date, the “Antitrust Clearance Date”), and (ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of use its reasonable best efforts to obtain the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind Shareholder Approval (except to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of extent the Company or any Company Subsidiaryhas effected a Change in Recommendation in accordance with Section 5.3) and, other than as permitted under clause (ix) of subject to Section 5.01(b);
(iii) declare5.3, set aside, make or pay any dividend or other distribution payable include in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of Proxy Statement/Prospectus the Company Partnership Agreement;
(iv) other than Board Recommendation. The Company shall use its reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material definitive form to the Company Shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act and to convene the Company Subsidiaries taken as a whole;Shareholders Meeting promptly after the Antitrust Clearance Date.
(viiid) except as required by any Material Contract or Notwithstanding anything to the contrary contained in this Agreement, subject to the ordinary course of business, sell, transfer or otherwise dispose of, or agree Company’s right to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions terminate this Agreement pursuant to this subsection (viii);
(ix) incur any IndebtednessArticle VIII, other than as permitted by the terms of Company may adjourn or postpone the Credit Agreements;
(x) enter, to a material extent, any line of business that is not Company Shareholders Meeting solely (i) currently conductedto ensure that the Company Shareholders are provided with any supplement or amendment to the Proxy Statement/Prospectus sufficiently in advance of the vote to be held at the Company Shareholders Meeting, (ii) currently contemplated if there are insufficient shares of Company Common Stock represented (either in person or by proxy) to be conducted by vote in favor of a proposal to approve and adopt this Agreement or to constitute a quorum necessary to conduct the business of the Company Shareholders Meeting, or (iii) ancillary from time to time, as may be necessary, to a date or dates that occur subsequent to the Company's current business, or commence business operations in any country outside Antitrust Clearance Date if the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, Antitrust Clearance Date has not occurred on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into date that is five (5) Business Days prior to the applicable scheduled date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingShareholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the ClosingSection 6.1 PREPARATION OF FORM S-4 AND THE PROXY STATEMENT/PROSPECTUS.
(a) As promptly as practicable after the execution of this Agreement, the Company and Parent shall cooperate with each other regarding, and, prepare and Rodeofile with the SEC, Inc. covenant a proxy statement/prospectus (together with any amendments thereof or supplements thereto, the “Proxy Statement/Prospectus”) relating to the meeting of the Company’s stockholders to be held to consider approval of the Merger (the “Company Voting Proposal”), and agree thatParent shall prepare and file a registration statement on Form S-4 (in which the Proxy Statement/Prospectus will be included) pursuant to which the issuance of Parent Common Shares, between if any, to be issued in the date Merger will be registered under the Securities Act (the “Registration Statement”). Subject to the provisions of Section 6.4, the Proxy Statement/Prospectus shall include the recommendation of the Company Board to the stockholders of the Company in favor of approval this Agreement and the time Merger (the “Company Recommendation”). The Company and Parent will cause the Proxy Statement/Prospectus and the Registration Statement to comply as to form in all material respects with the applicable provisions of the ClosingSecurities Act, except the Exchange Act and the rules and regulations thereunder. Each of Parent and the Company shall use all reasonable efforts to have or cause the Proxy Statement/Prospectus to be cleared by the SEC and to cause the Registration Statement to become effective as set forth in Section 5.01 promptly as practicable. Without limiting the generality of the Disclosure Letter foregoing, each of the Company and Parent shall cause its respective officers, directors, employees, financial advisors, agents or other representatives (“Representatives”) to fully cooperate with the other party and its respective Representatives in the preparation of the Proxy Statement/Prospectus and the Registration Statement, and shall, upon request, furnish the other party with all information concerning it and its Affiliates as contemplated by the other may deem reasonably necessary or advisable in connection with the preparation of the Proxy Statement/Prospectus and the Registration Statement. Parent shall use commercially reasonable best efforts to take all actions required under any other provision applicable federal or state securities or Blue Sky Laws in connection with the issuance of this AgreementParent Common Shares pursuant to the Merger, unless if any, and will pay all filing fees incident thereto. As promptly as practicable after the Buyer Registration Statement becomes effective, the Company shall otherwise consent in writingcause the Proxy Statement/Prospectus to be mailed to its stockholders.
(b) Without limiting the generality of the foregoing, which consent shall not be unreasonably withheld or delayed:
prior to the Effective Time (i) the businesses of the Company and Parent shall notify each other as promptly as practicable upon becoming aware of any event or circumstance which should be described in an amendment of, or supplement to, the Company Subsidiaries shall be conducted only inProxy Statement/Prospectus or the Registration Statement, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and Parent shall each notify the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available other as promptly as practicable after the services receipt by it of any written or oral comments of the current employees SEC on, or of Rodeoany written or oral request by the SEC for amendments or supplements to, Inc. the Proxy Statement/Prospectus or the Registration Statement, and to preserve shall promptly supply the current relationships other with copies of the Company all correspondence between it or any of its Representatives and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Unitsforegoing filings.
(c) Prior to the mailing of the Proxy Statement/Prospectus, the Incentive Distribution Rights, Company shall designate The ▇▇▇▇▇▇ Group or another agent reasonably acceptable to Parent to act as the GP Interest or any other ownership interests, except solicitor for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms purpose of soliciting proxies from the Company’s stockholders for the approval of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingVoting Proposal.
Appears in 1 contract
Sources: Merger Agreement (Inland Retail Real Estate Trust Inc)
Additional Agreements. SECTION 5.01 Conduct Section 5.01. Preparation of Business Prior to the ClosingProxy Statement and Schedule 13E-3; Stockholders’ Meeting .
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as reasonably practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries Parent shall be conducted only inprepare, and the Company and shall file with the Company Subsidiaries shall not take any action except inSEC, the ordinary course of business;
(ii) Proxy Statement. The Company shall cause the Company and Proxy Statement to be mailed to the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships stockholders of the Company and as promptly as practicable. Parent shall furnish to the Company Subsidiaries all information as may be reasonably requested by the Company in connection with customersthe preparation, contractholders filing and other Persons with whom distribution of the Proxy Statement. No filing of, or amendment or supplement to, the Proxy Statement will be made by the Company without providing Parent a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any classParent, or any optionsof their respective Affiliates, warrantsdirectors or officers, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to should be conducted discovered by the Company or (iii) ancillary Parent which should be set forth in an amendment or supplement to the Company's current businessProxy Statement, so that such document would not include any misstatement of a material fact or commence business operations omit to state any material fact necessary to make the statements therein, in any country outside light of the United States circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other party hereto and an appropriate amendment or Canada;
(xi) increase supplement describing such information shall be promptly filed with the compensation payable or to become payable SEC and, to the Company'sextent required by Law, any Company Subsidiary's, or Seller's officers or employees, except in disseminated to the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee stockholders of the Company, Seller . The parties shall notify each other promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply each other with copies of all correspondence between it or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company SubsidiaryRepresentatives, on the one hand, and any the SEC or the staff of their respective officers, directors, unitholders, owners or Affiliatesthe SEC, on the other hand, which if entered into with respect to the Proxy Statement or the Merger.
(b) Concurrently with the filing of the Proxy Statement with the SEC, Parent and its Affiliates shall prepare and file with the SEC, together with the Company, the Schedule 13E-3. Parent and the Company shall cause the Schedule 13E-3 to comply with the rules and regulations promulgated by the SEC and respond promptly to any comments of the SEC or its staff regarding the Schedule 13E-3. Each party agrees to provide the other party and its counsel with copies of any comments that such party or its counsel may receive from the staff of the SEC regarding the Schedule 13E-3 promptly after receipt thereof. The Company shall promptly furnish to Parent all information concerning the Company and its executive officers and directors as may reasonably be requested in connection with the preparation of the Schedule 13E-3. The Company and its counsel shall be given an opportunity to review and comment on the Schedule 13E-3 and each supplement, amendment or response to comments with respect thereto prior to filing with or delivering to the SEC.
(c) The Company shall use its reasonable best efforts, as soon as practicable following the date hereof would of this Agreement, to establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Company Stockholder Approvals; provided that such date may be extended to the extent reasonably necessary to permit the Company to file and distribute any material amendment to the Proxy Statement as is required by applicable law. Subject to be disclosed Section 4.02, the Company shall, through its Board of Directors, recommend to its stockholders adoption of this Agreement and the Merger and shall include the Company Board Recommendation in the Proxy Statement. A Change in Recommendation permitted by Sections 4.02(e), (f) or (g) will not constitute a breach by the Company of this Agreement. Without limiting the generality of the foregoing, but subject to the terms of this Agreement, the Company’s obligations pursuant to the first sentence of this Section 3.20;
5.01(c) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Takeover Proposal (xix) materially alter (through mergerwhether or not a Superior Proposal). In addition, liquidationnotwithstanding any Change in Recommendation, reorganizationunless this Agreement is terminated pursuant to, restructuringand in accordance with, conversion or in any other fashion) Section 7.01, this Agreement shall be submitted to the corporate structure or ownership stockholders of the Company or any Company Subsidiary other than as contemplated by at the Stockholders’ Meeting for the purpose of adopting this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.1 PREPARATION OF THE FORM S-4, PROXY STATEMENT; STOCKHOLDERS MEETING.
(a) Parent and Rodeo, Inc. covenant and agree that, between As promptly as practicable following the date of this Agreement Agreement, Parent and the time Company shall prepare, and Parent shall file with the SEC, the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the ClosingCompany shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act, except and for the Proxy Statement to be cleared under the Exchange Act, as set forth in Section 5.01 of the Disclosure Letter or promptly as contemplated by practicable after such filing. Without limiting any other provision of this Agreementhereinabove contained, unless the Buyer shall otherwise consent in writingForm S-4 and the Proxy Statement will contain, which consent shall not be unreasonably withheld without limitation, such information and disclosure reasonably requested by either Parent or delayed:
the Company so that (i) the businesses Form S-4 conforms in both form and substance to the requirements of the Company and the Company Subsidiaries shall be conducted only inSecurities Act, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Proxy Statement conforms in both form and substance to the requirements of the Exchange Act. The Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, cause the Proxy Statement to keep available be mailed to holders of Company Common Stock as promptly as practicable after the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceForm S-4 is declared effective.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed If at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent Effective Time there shall not be unreasonably withheld or delayed:
occur (i) amend, propose any event with respect to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any of its Subsidiaries, or with respect to other information supplied by Company Subsidiary for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement to, the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any class, comments from the SEC or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest its staff or any other ownership interests (including, without limitation, appropriate government official and of any phantom interest, general partnership interest requests by the SEC or limited partnership interest) its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and the other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu ofits representatives, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest Parent or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or propertiesrepresentatives, other than transactions that are in as the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiarycase may be, on the one hand, and the SEC or its staff or any of their respective officers, directors, unitholders, owners or Affiliatesother appropriate government official, on the other hand, which with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "COMPANY RECOMMENDATION"); provided, however, that the Company's Board of Directors shall not be required to make such Company Recommendation to the extent that it is permitted to effect a Change in the Company Recommendation pursuant to Section 4.3. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation, provided, however, that if entered into prior the Board of Directors of the Company shall have effected a Change in the Company Recommendation in accordance with this Agreement, then in submitting this Agreement to the Company's stockholders, the Board of Directors of the Company may submit this Agreement to the Company's stockholders without recommendation (although the resolutions adopting this Agreement and the Plan of Merger as of the date hereof would may not be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through mergerrescinded or amended), liquidation, reorganization, restructuring, conversion or in any other fashion) which event the corporate structure or ownership Board of Directors of the Company may communicate the basis for its lack of a recommendation to the Company's stockholders in the Proxy Statement or any Company Subsidiary other than as contemplated an appropriate amendment or supplement thereto to the extent required by this Agreement; orlaw.
(xxe) enter into any contract, agreement, commitment or arrangement The Company shall coordinate and cooperate with Parent with respect to do any the timing of the foregoingCompany Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 5.1 Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; Stockholders Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company and Parent shall otherwise consent prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in writing, which consent shall not the Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus. Each of the Company and Parent shall use best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all best efforts to cause the Proxy Statement to be mailed to the holders of Company Common Stock and Company Preferred Stock as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of the Parent Common Stock and the Parent New Preferred Stock in the Merger and the Company Subsidiaries shall be conducted only in, and furnish all information concerning the Company and the holders of Company Subsidiaries shall not take Common Stock as may be reasonably requested in connection with any action except insuch action. No filing of, or amendment or supplement to, the ordinary course of business;
(ii) Form S-4 or the Proxy Statement will be made by Parent or the Company without providing the other with the opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock and the Parent New Preferred Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company Subsidiaries or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall use reasonable best efforts to preserve substantially intact their business organizationpromptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to keep available the services of extent required by law, disseminated to the current employees of Rodeo, Inc. and to preserve the current relationships stockholders of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceParent.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the The Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between as promptly as practicable after the date of this Agreement and Form S-4 is declared effective under the ClosingSecurities Act, directly or indirectly doduly call, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose give notice of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general convene and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any hold a meeting of its assets or properties, other than transactions that are in stockholders (the ordinary course of business and not material to the "Company and the Company Subsidiaries taken as a whole;
(viiiStockholders Meeting") except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions DGCL for the purpose of obtaining the Company Stockholder Approval and, subject to its rights to terminate this Agreement pursuant to Section 4.2(b), shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby. Without limiting the generality of the foregoing but subject to its rights to terminate this Agreement pursuant to Section 4.2(b), the Company agrees that its obligations pursuant to the first sentence of this Section 5.01;
(xiv5.1(b) settle shall not be affected by the commencement, public proposal, public disclosure or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise communication to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingTakeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (Salomon Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing6.1 PREPARATION OF FORM S-4 AND THE PROXY STATEMENT; STOCKHOLDER MEETING.
(a) As promptly as practicable after the execution of this Agreement, the Company and Parent shall cooperate with each other regarding, and, prepare and file with the SEC, the Proxy Statement/Prospectus and Parent shall prepare and file the Registration Statement (in which the Proxy Statement/Prospectus will be included). The Company and Parent will cause the Proxy Statement/Prospectus and the Registration Statement to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations thereunder. Each of Parent and Rodeothe Company shall use all reasonable efforts to have or cause the Proxy Statement/Prospectus to be cleared by the SEC and to cause the Registration Statement to become effective as promptly as practicable. Without limiting the generality of the foregoing, Inc. covenant each of the Company and agree thatParent shall cause its respective Representatives to fully cooperate with the other Party and its respective 51 Representatives in the preparation of the Proxy Statement/Prospectus and the Registration Statement, between and shall, upon request, furnish the other Party with all information concerning it and its Affiliates as the other may deem reasonably necessary or advisable in connection with the preparation of the Proxy Statement/Prospectus and the Registration Statement. The Company hereby agrees that the recommendations of the Company Board described in Section 3.19 (subject to the right of the Company Board to withdraw, amend or modify such recommendation in accordance with Section 6.3) shall be included in the Registration Statement and the Proxy Statement/Prospectus. Parent shall use commercially reasonable best efforts to take all actions required under any applicable federal or state securities or Blue Sky Laws in connection with the issuance of shares of Parent Common Stock pursuant to the Merger and will pay all filing fees incident thereto. As promptly as practicable after the Registration Statement becomes effective, the Company shall cause the Proxy Statement/Prospectus to be mailed to its stockholders. Parent shall comply with its obligations under Section 3(a)(i) of the Lazard Rights Agreement.
(b) The Company and Parent each agrees that none of the information supplied by it or its Subsidiaries to be included or incorporated by reference in the Proxy Statement/Prospectus or any amendment thereof or supplement thereto, will, on the date of this Agreement the mailing of the Proxy Statement/Prospectus or any amendment or supplement thereto, and at the time of the ClosingCompany Stockholders Meeting, except as set forth contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in Section 5.01 order to make the statements therein, in light of the Disclosure Letter circumstances under which they are made, not misleading. The Company and Parent each agrees that none of the information supplied by it or as contemplated its Subsidiaries to be included or incorporated by reference in the Registration Statement will, at the time the Registration Statement becomes effective under the Securities Act, contain any other provision untrue statement of this Agreementa material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, unless in light of the Buyer shall otherwise consent in writingcircumstances under which they are made, which consent shall not be unreasonably withheld or delayed:misleading.
(c) Without limiting the generality of the foregoing, prior to the Effective Time (i) the businesses of the Company and Parent shall notify each other as promptly as practicable upon becoming aware of any event or circumstance which should be described in an amendment of, or supplement to, the Company Subsidiaries shall be conducted only inProxy Statement/Prospectus or the Registration Statement, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and Parent shall each notify the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available other as promptly as practicable after the services receipt by it of any written or oral comments of the current employees SEC on, or of Rodeoany written or oral request by the SEC for amendments or supplements to, Inc. the Proxy Statement/Prospectus or the Registration Statement, and to preserve shall promptly supply the current relationships other with copies of the Company all correspondence between it or any of its Representatives and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Unitsforegoing filings.
(d) The Company shall take all action necessary to duly call the Company Stockholders Meeting, to be held as promptly as practicable for the Incentive Distribution Rights, purpose of voting upon the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms approval of the Company Partnership Agreement;
(iv) other than in Voting Proposal. Subject to the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests right of the Company Board to withdraw, amend or any modify such recommendation in accordance with Section 6.3, the Company Subsidiary in respect ofshall, in lieu ofthrough its board of directors, or in substitution recommend to its stockholders adoption of this Agreement and approval of the UnitsMerger and related matters, and the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests Company shall use its best efforts to solicit from its stockholders proxies in favor of the Company or any Voting Proposal. Without limiting the generality of the foregoing, the Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions agrees that its obligations pursuant to this subsection (vi);
(viiSection 6.1(d) except for Permitted Encumbrances to call and conduct the Company Stockholders Meeting shall not be affected by the commencement, public proposal or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material communication to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingAcquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Center Trust Inc)
Additional Agreements. SECTION 5.01 Conduct 5.1. Preparation of Business Prior to Form S-4 and the ClosingJoint Proxy Statement; Stockholders Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between Promptly following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and Purchaser shall prepare and file with the Company Subsidiaries shall be conducted only inSEC the Joint Proxy Statement, and Purchaser shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Purchaser shall use its reasonable best efforts to preserve substantially intact their business organization, to keep available have the services Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall Purchaser will use their its reasonable best efforts to continue cause the Joint Proxy Statement to be mailed to its stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Purchaser shall also take any action (other than qualifying to do business in force any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities law in connection with good the Share Issuance, and responsible insurance companies adequate insurance covering risks Company shall furnish all information concerning Company and the holders of Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Option Plans as may be reasonably required in connection with any such types action. Each of Purchaser and Company shall furnish all information concerning itself to the other as may be reasonably requested in connection with any such amounts as are consistent with past practiceaction and the preparation, filing and distribution of the Form S-4 and the preparation, filing and distribution of the Joint Proxy Statement. Company, Purchaser and Merger Sub each agree to promptly correct any information provided by it for use in the Form S-4 or the Joint Proxy Statement that shall have become false or misleading.
(b) By way Company, acting through its Board of amplification Directors, shall, subject to and not limitationin accordance with its articles of incorporation and by-laws, except promptly and duly call, give notice of, convene and hold as contemplated by soon as practicable following the date upon which the Form S-4 becomes effective a meeting of the holders of Company Common Stock (the "Company Stockholders Meeting") for the purpose of voting to approve this Agreement, or and (i) except as reflected otherwise provided in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letterfollowing sentence, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date recommend approval of this Agreement and include in the ClosingJoint Proxy Statement such recommendation and (ii) use its reasonable best efforts to solicit and obtain such approval. In the event that prior to the approval of this Agreement by the Company's stockholders, directly the Board of Directors of Company receives a Superior Proposal (as defined in Section 8.13) and the Board of Directors of Company determines in good faith by resolution duly adopted after consultation with its outside counsel that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under Virginia law, the Board of Directors of Company may withdraw, amend or indirectly domodify, in a manner adverse to Purchaser, its recommendation, provided that before withdrawing, amending or modifying its recommendation, it gives Purchaser five business days' prior written notice of its intention to do so and during such time, Company, if requested by Purchaser, shall have engaged in good faith negotiations to amend this Agreement such that the Board of Directors of Company may continue to recommend the approval of this Agreement. The parties agree that nothing in this Section 5.1 shall in any way limit or otherwise affect Purchaser's right to terminate this Agreement pursuant to Section 7.1(c) at such time as the requirements of such subsection have been met. Any such withdrawal, amendment or modification of the recommendation shall not (x) change the adoption of this Agreement or any other approval of the Board of Directors of Company in any respect that would have the effect of causing the threshold restrictions on Company Common Stock ownership in Company's articles of incorporation, the Company Rights Agreement and any Virginia corporate takeover statute or other similar statute to be applicable to the transactions contemplated hereby, including the Merger, or propose the transactions contemplated by the Option Agreement, or (y) change the obligation of Company to dopresent this Agreement for approval at the Company Stockholders Meeting on the earliest practicable date. At any such meeting following any withdrawal, any amendment or modification of Company's recommendation of this Agreement, Company may submit this Agreement to its stockholders without recommendation (although the adoption of this Agreement by the Board of Directors of Company may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to its stockholders in the Joint Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law. Nothing contained in this Agreement shall prohibit Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making disclosure of the followingfact that a proposal for an Alternative Transaction has been made, without the prior written consent identity of Buyerthe party making the proposal or the material terms of such proposal in the Form S-4 or the Joint Proxy Statement, which consent to the extent disclosure of such facts, identity or terms is advisable under applicable law (and the disclosure of such facts, by itself, shall not be unreasonably withheld deemed a withdrawal or delayed:adverse modification or amendment of its approval or recommendation to stockholders of the Merger).
(ic) amendDuring the term of this Agreement, propose Company shall not take any actions to amendexempt any Person other than Purchaser and Merger Sub from the Company Rights Agreement, the threshold restrictions on Company Common Stock ownership in Company's articles of incorporation, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement make any Virginia state takeover statute or similar organizational documents;statute inapplicable to any Alternative Transaction unless, in any such case, the Board of Directors of Company determines in good faith after consultation with its outside counsel that failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under Virginia law.
(iid) issue, sell, transfer, pledge, dispose of, grant, encumber, amend Company will cause its transfer agent to make stock transfer records relating to Company available to the terms of, or authorize extent reasonably necessary to effectuate the issuance, sale, pledge, disposition, grant or Encumbrance intent of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);this Agreement.
(iiie) declarePurchaser, set asideacting through its Board of Directors, make or pay any dividend or other distribution payable in cashshall, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions its articles of this Section 5.01;
(xiv) settle or compromise any material Auditincorporation and by-laws, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would promptly and duly call, give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision notice of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, convene and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to hold as soon as practicable following the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through mergeron which the Form S-4 becomes effective, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership a meeting of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
holders of Purchaser Common Stock (xxthe "Purchaser Stockholders Meeting") enter into any contract, agreement, commitment or arrangement for the purpose of voting to do any of approve the foregoing.Share
Appears in 1 contract
Sources: Merger Agreement (Anthem Inc)
Additional Agreements. SECTION 5.01 Conduct Section 6.01 Preparation of Business Prior to the ClosingForm S-4 and Joint Proxy Statement.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company Parent and the Company Subsidiaries shall prepare, together with USV,, and Parent shall file with the SEC, a joint proxy statement/information statement (the "Joint Proxy Statement") in preliminary form and the Form S-4, in which the Joint Proxy Statement will be conducted only inincluded as a prospectus, and Parent and the Company shall use their reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Parent and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use their reasonable best efforts to preserve substantially intact their business organization, to keep available have the services of Form S-4 declared effective by the current employees of Rodeo, Inc. SEC as promptly as practicable after such filing and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply ensure that it complies in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due the applicable provisions of the Securities Act and with their respective obligations under applicable Law; and
(iv) the Company Exchange Act. Parent and the Company Subsidiaries shall use their reasonable best efforts also take any other action required to continue be taken under any applicable federal and state securities laws in force connection with good the issuance of Parent Common Stock in the Merger and each of the Parent and the Company shall furnish all information concerning itself and its stockholders as may be reasonably requested by the other in connection with the Joint Proxy Statement or any such action. Parent and the Company shall each be solely responsible insurance companies adequate insurance covering risks of such types and for any statement, information or omission in such amounts the Form S-4 or the Joint Proxy Statement relating to it based upon information provided by it for inclusion therein. Palisade agrees to cause USV to furnish all information concerning USV as are consistent may be reasonably requested by Parent or Company in connection with past practicethe Joint Proxy Statement or pursuant to this Article VI.
(b) By way of amplification and not limitationIf, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) receipt of the Company Stockholder Approval or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitationParent Stockholder Approval, any phantom interest, general partnership interest or limited partnership interest) of event occurs with respect to the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, change occurs with respect to other information supplied by the Company for inclusion in the Form
(c) If, at any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant time prior to the terms receipt of the Company Partnership Agreement;Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to the Parent, any Parent Subsidiary, or any change occurs with respect to other information supplied by the Parent for inclusion in the Form S-4 or the Joint Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Joint Proxy Statement, the Parent shall promptly notify the Company of such event, and the Parent and Company shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Joint Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to Parent's or the Company's stockholders.
(ivd) other than in If, at any time prior to the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests receipt of the Company Stockholder approval or the Parent Stockholder Approval, to Palisade's knowledge, any event occurs with respect to USV, or any Company Subsidiary change occurs with respect to other information supplied by USV for inclusion in respect ofthe Form S-4 or the Joint Proxy Statement, which is required to be described in lieu an amendment of, or in substitution of the Unitsa supplement to, the Incentive Distribution RightsForm S-4 or the Joint Proxy Statement, Palisade shall cause USV to (x) promptly notify the GP Interest Company of such event and (y) to cooperate in the prompt filing with the SEC of any necessary amendment or other ownership interests;supplement to the Form S-4 or the Joint Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to Parent's or the Company's stockholders.
(ve) redeemPalisade agrees that, purchase or otherwise acquireconcurrently with the execution and delivery of this Agreement, directly or indirectlyit shall, any Units, Incentive Distribution Rights or any other ownership interests deliver to the Company a duly executed written consent (the "Company Written Consent") with respect to all shares of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, owned by merger, consolidation or acquisition of stock or assets) any interest it in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms favor of the Credit Agreements;
(x) enter, Merger and approval of this Agreement. The Company shall use its reasonable efforts to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated cause the Joint Proxy Statement to be conducted by the Company or (iii) ancillary mailed to the Company's current business, or commence business operations in any country outside stockholders as promptly as practicable after the United States or Canada;date of this Agreement.
(xif) increase Parent shall, as soon as practicable following the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course date of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter intoduly call, amend, terminate or waive any provision give notice of, any agreement or arrangementconvene and hold an annual meeting of its stockholders (the "Parent Stockholders Meeting") for the purpose of, or enter into any transactionamong other things, between seeking the Company and/or any Company Subsidiary, on Parent Stockholder Approval. Parent shall use its reasonable efforts to cause the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior Joint Proxy Statement to be mailed to Parent's stockholders as promptly as practicable after the date hereof would be required of this Agreement. Parent shall, through the Parent Board, recommend to be disclosed pursuant to Section 3.20;its stockholders that they give the Parent Stockholder Approval.
(xixg) materially alter Palisade agrees that, by its execution and delivery of this Agreement, it agrees to (through merger, liquidation, reorganization, restructuring, conversion or in any other fashioni) the corporate structure or ownership vote all shares of the Company or any Company Subsidiary other than as contemplated Parent owned by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement it in favor of the Merger when called upon by the Parent to do any so; (ii) vote all shares of USV owned by it in favor of the foregoingUSV Transaction when called upon by USV to do so; and (iii) vote all shares of Parent owned by it in favor of the USV Transaction when called upon by Parent to do so.
Appears in 1 contract
Sources: Merger Agreement (Refac)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing6.1. PREPARATION OF PROXY STATEMENT; STOCKHOLDER MEETING; COMFORT LETTERS.
(a) Parent Promptly following the date of this Agreement, the Company shall prepare the Proxy Statement (the "Proxy Statement") required to be distributed to holders of Company Common Stock in connection with the Merger and Rodeoinclude therein the recommendation of the Board that the stockholders of the Company vote in favor of the approval and adoption of this Agreement and include therein the written opinion of ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ Inc. covenant (the "Financial Adviser") that the cash consideration to be received by the stockholders of the Company pursuant to the Merger is fair, from a financial point of view, to such stockholders; provided, however, that the Board of Directors of the Company may fail to make or may withdraw or modify such recommendation, if, in accordance with Section 5.4, the Board of Directors of the Company recommends a Superior Proposal. The Company shall use its reasonable best efforts to obtain and agree thatfurnish the information required to be included by it in the Proxy Statement and, between after consultation with Emerald, respond promptly to any comments made by the Securities and Exchange Commission (the "SEC") with respect to the Proxy Statement and any preliminary version thereof. Emerald will cooperate with the Company in connection with the preparation of the Proxy Statement including, but not limited to, furnishing to the Company any and all information regarding Emerald as may be required to be disclosed therein. The Company will use reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable.
(b) All filings with the SEC and all mailings to the Company's stockholders in connection with the Merger, including the Proxy Statement, shall be subject to the prior review, comment and approval of Emerald (such approval not to be unreasonably withheld or delayed).
(c) The Company will, as promptly as practicable following the date of this Agreement and in consultation with Emerald, duly call and give notice of, and, provided that this Agreement has not been terminated, convene and hold, the time Company Stockholders' Meeting for the purpose of approving this Agreement and the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as transactions contemplated by any other provision of this Agreement, unless Agreement to the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:extent required by the DGCL (the "Company Stockholders' Meeting"). The Company will use reasonable best efforts to hold such meeting as soon as practicable after the date hereof.
(id) Upon the businesses request of Emerald, the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their cause to be delivered to the Company and Emerald a letter of Ernst & Young LLP, the Company's independent public accountants, dated a date within two (2) business organization, days before the date of mailing the Proxy Statement to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships stockholders of the Company and a letter of Ernst & Young LLP dated a date within two (2) business days before the Company Subsidiaries with customersStockholders' Meeting, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary addressed to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against each case customary in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or scope and substance for letters delivered by independent public accountants in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior proxy statements similar to the date hereof would Proxy Statement; PROVIDED, HOWEVER, that such letters shall only be required delivered to be disclosed pursuant the extent permitted under accounting principles and pronouncements applicable to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingU.S. accounting profession.
Appears in 1 contract
Sources: Merger Agreement (Intercargo Corp)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing6.1. PREPARATION OF FORM S-4 AND THE PROXY STATEMENT; STOCKHOLDER MEETING.
(a) Parent As promptly as practicable after the execution of this Agreement, the Company and RodeoAcquiror shall cooperate, Inc. covenant prepare and agree thatfile with the SEC, between the date Joint Proxy Statement/Prospectus and the Registration Statement in which the Joint Proxy Statement/Prospectus will be included as a prospectus, provided that Acquiror may delay the filing of the Registration Statement until approval of the Joint Proxy Statement/Prospectus by the SEC. The Company and Acquiror will cause the Joint Proxy Statement/Prospectus and the Registration Statement to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations thereunder. Each of Acquiror and the Company shall use reasonable best efforts to have or cause the Joint Proxy Statement/Prospectus to be cleared by the SEC and to cause the Registration Statement to become effective as promptly as practicable. Without limiting the generality of the foregoing, each of the Company and Acquiror shall, and shall cause its respective Representatives to, fully cooperate with the other party and its respective Representatives in the preparation of the Joint Proxy Statement/Prospectus and the Registration Statement, and shall, upon request, furnish the other party with all information concerning it and its affiliates, directors, officers and stockholders as the other may reasonably request in connection with the preparation of the Joint Proxy Statement/Prospectus and the Registration Statement. The Joint Proxy Statement/Prospectus with respect to the Merger shall include the determination and recommendation of the Company Board (subject to Section 6.3(d)) and the Acquiror Board that their respective stockholders vote in favor of the approval and adoption of this Agreement and the time Merger. The Company and Acquiror shall use reasonable best efforts to take all actions required under any applicable foreign, federal or state securities or Blue Sky Laws in connection with the issuance of shares of Acquiror Common Stock pursuant to the Merger. As promptly as practicable after the Registration Statement with respect to the Merger shall have become effective, the Company and Acquiror shall cause the Joint Proxy Statement/Prospectus with respect to the Merger to be mailed to their respective stockholders.
(b) Without limiting the generality of the Closingforegoing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and Acquiror shall notify each other as promptly as practicable upon becoming aware of any event or circumstance which should be described in an amendment of, or supplement to, the Company Subsidiaries shall be conducted only inJoint Proxy Statement/Prospectus or the Registration Statement, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and Acquiror shall each notify the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available other as promptly as practicable after the services receipt by it of any written or oral comments of the current employees SEC on, or of Rodeoany written or oral request by the SEC for amendments or supplements to, Inc. the Joint Proxy Statement/Prospectus or the Registration Statement, and to preserve shall promptly supply the current relationships other with copies of the Company all correspondence between it or any of its representatives and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Unitsforegoing filings.
(c) The Company shall take all action necessary to convene and hold a meeting of its stockholders as promptly as practical for the purpose of obtaining the Company Stockholder Approval. Subject to Section 6.3, the Incentive Distribution RightsCompany shall, through the Company Board, recommend to its stockholders the adoption of this Agreement and the transactions contemplated hereby and shall use its best efforts to solicit from its stockholders proxies in favor of adoption of this Agreement and to take all other lawful action necessary to secure the Company Stockholder Approval. Without limiting the generality of the foregoing, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions agrees that its obligations pursuant to this Section 6.1(c) shall not be affected by the terms commencement, public proposal or communication to the Company of any Acquisition Proposal, subject to Section 6.3 below.
(d) Acquiror shall take all action necessary in accordance with applicable law and its certificate of incorporation and bylaws to convene and hold a meeting of its stockholders as promptly as practical for the purpose of obtaining the Acquiror Stockholder Approval. Acquiror shall, through the Acquiror Board, recommend to its stockholders the adoption of this Agreement and the transactions contemplated hereby and shall use its best efforts to solicit from its stockholders proxies in favor of adoption of this Agreement and to take all other lawful action necessary to secure the Acquiror Stockholder Approval. Neither the Acquiror Board nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to the Company, the approval or recommendation by the Acquiror Board of this Agreement or the transactions contemplated hereby.
(e) The Company and Acquiror shall coordinate and cooperate with each other with respect to the timing of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company Stockholder Meeting and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree Acquiror Stockholder Meeting and shall use their best efforts to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any hold such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, meeting on the one hand, same day and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to as soon as practicable after the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoinghereof.
Appears in 1 contract
Sources: Merger Agreement (Mattel Inc /De/)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing4.1. PREPARATION OF FORM S-4 AND PROXY STATEMENT; STOCKHOLDERS MEETING.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, the Company and Parent shall prepare and the time of Company shall file with the ClosingSEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, except in which the Proxy Statement will be included as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses a prospectus. Each of the Company and Parent shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. To the extent that presenting this Agreement and the Merger to the Company's stockholders would not violate or otherwise be inconsistent with applicable law, the Company Subsidiaries will use its reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action required to be conducted only intaken under any applicable state securities laws or other applicable laws, rules or regulations in connection with the issuance of Parent Common Stock pursuant to the terms of this Agreement. Each of Parent and the Company shall furnish all information concerning itself to the other as may be reasonably requested in connection with any such action and the Company Subsidiaries shall not take any action except inpreparation, the ordinary course of business;
(ii) the Company filing and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services distribution of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceProxy Statement.
(b) By way of amplification and not limitationThe Company will, except as contemplated by this Agreement, or soon as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between reasonably practicable following the date of this Agreement Agreement, establish a record date (which will be as soon as practicable following the date of this Agreement) for, and, to the extent that convening and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall holding a meeting would not be unreasonably withheld or delayed:
(i) amend, propose to amend, violate or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issuebe inconsistent with applicable law, sellduly call, transfer, pledge, dispose give notice of, grant, encumber, amend convene and hold a meeting of its stockholders (the terms of, or authorize "Stockholders Meeting") for the issuance, sale, pledge, disposition, grant or Encumbrance purpose of any Units, approving and adopting this Agreement. Except to the Incentive Distribution Rights, extent the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) Board of Directors of the Company or any Company Subsidiary determines in good faith, after consultation with outside counsel, that to do so would create a substantial risk of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except liability for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any breach of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary fiduciary duties to the Company's current businessstockholders under applicable law, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiarywill, except for any such change required by U.S. GAAP;
(xiii) paythrough its Board of Directors, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions recommend to its stockholders approval and adoption of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct Section 7.01 Preparation of Business Prior to the Closing.Form S-4 and Proxy Statement
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company Parent and the Company Subsidiaries shall prepare, together with OptiCare, and Parent shall file with the SEC, an proxy statement (the "Proxy Statement") in preliminary form and the Form S-4, in which the Proxy Statement will be conducted only inincluded as a prospectus, and Parent and the Company shall use their reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Parent and the Company shall use their reasonable efforts to have the Form S-4 declared effective by the SEC as promptly as practicable after such filing and to ensure that it complies in all material respects with the applicable provisions of the Securities Act and the Exchange Act. Parent and the Company shall also take any other action required to be taken under any applicable federal and state securities laws in connection with the issuance of Parent Common Stock in the Merger and the Company and the Company Subsidiaries Stockholders shall not take any action except in, the ordinary course of business;
(ii) furnish all information concerning the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services holders of the current employees of RodeoCompany Common Stock as may be reasonably requested in connection with the Proxy Statement or any such action. Parent, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customersStockholders shall each be solely responsible for any statement, contractholders and other Persons with whom information or omission in the Company Form S-4 or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding Proxy Statement relating to it based upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceinformation provided by it for inclusion therein.
(b) By way of amplification and not limitationIf, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed at any time prior to the date hereof or Section 5.01 receipt of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to doStockholder Approval, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose event occurs with respect to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, change occurs with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice information supplied by the Company or any Company Subsidiary, except Stockholder for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, inclusion in the ordinary course of businessForm S-4 or the Proxy Statement, of liabilities reflected which is required to be described in an amendment of, or reserved against in a supplement to, the Reference Balance Sheet Form S-4 or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material AuditProxy Statement, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess such Stockholder shall promptly notify Parent of $25,000,000 singly or $50,000,000 such event, and the Company, the Stockholders and Parent shall cooperate in the aggregate, other than in the ordinary course of business or in connection prompt filing with the transactions described SEC of any necessary amendment or supplement to the Form S-4 or the Proxy Statement and, as required by Law, in clause (vi) above;disseminating the information contained in such amendment or supplement to Parent's stockholders.
(xviiic) except Parent shall, as provided in soon as practicable following the date of this Agreement, enter intoduly call, amend, terminate or waive any provision give notice of, any agreement or arrangementconvene and hold an annual meeting of its stockholders (the "Parent Stockholders Meeting") for the purpose of, or enter into any transactionamong other things, between seeking the Company and/or any Company Subsidiary, on Parent Stockholder Approval. Parent shall use its reasonable efforts to cause the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior Proxy Statement to be mailed to Parent's stockholders as promptly as practicable after the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract. Parent shall, agreementthrough the Parent Board, commitment or arrangement recommend to do any of its stockholders that they give the foregoingParent Stockholder Approval.
Appears in 1 contract
Sources: Merger Agreement (Refac)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing6.1 PREPARATION OF THE FORM S-4, PROXY/INFORMATION STATEMENT .
(aA) Parent and Rodeo, Inc. covenant and agree that, between As promptly as practicable following the date of this Agreement Agreement, Parent shall prepare and file with the SEC (and the time Company shall cooperate and participate in the preparation of) a Registration Statement on Form S-4 (the "Form S-4"), in which an information statement (the "Proxy/Information Statement") shall be included as a prospectus and in which a resale prospectus (the "Resale Prospectus") shall be included for the purpose of permitting the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses Parent Common Stock issued to those affiliates of the Company identified in Section 6.10 of the Company Disclosure Schedule to be resold by such affiliates as provided in the last sentence of this Section 6.1(a), subject to the Initial Lock-Up Period and the Lock-Up Period.). Each of Parent and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue have the Form S-4 and the Resale Prospectus declared effective under the Securities Act and the Proxy/Information Statement "cleared" by the SEC's staff for mailing in force connection with good the Company Shareholder Meeting as promptly as practicable after such filing. As promptly as practicable after the Form S-4 is declared effective, the Company shall cause the Proxy/Information Statement to be mailed to its shareholders. In the event that the Resale Prospectus has not remained in effect, Parent shall file, with the SEC, no later than one (1) year after the Effective Date, a registration statement under the Securities Act and responsible insurance companies adequate insurance a resale prospectus covering risks all shares subject to the Resale Prospectus and those shares held by affiliates of such types and in such amounts as are consistent with past practicethe Parent.
(bB) By way The Company and Parent shall cooperate with one another (i) in connection with the preparation of amplification the Proxy/Information Statement and not the Form S-4, (ii) in determining whether any other action by or in respect of, or filing with, any governmental body, agency or official, or authority or any actions, consents, approvals or waivers are required to be obtained from parties to any leases and other material contracts in connection with the consummation of the Merger, and (iii) in seeking any such actions, consents, approvals or waivers or making any such filings, furnishing information required in connection therewith or with the Proxy/Information Statement or the Form S-4 and seeking timely to obtain any such actions, consents, approvals or waivers.
(C) Parent shall use its commercially reasonable efforts to obtain consent from its shareholders for all other actions contemplated herein which require the consent of the shareholders of Parent, including without limitation the actions set forth in Section 6.9.
(D) The Company shall furnish to Parent and to Parent's independent certified public accountants such workpapers and supporting documentation, as well as such consents by the Company's independent public certified accountants, as Parent or Parent's independent certified public accountants may reasonably require in order to include the Company's financial statements and the related reports of Company's independent certified public accountants in Parent's filing with the SEC on Form S-4 or any other filing required to be made by Parent with the SEC.
(E) On or prior to the filing of Parent's registration statement on Form S-4 contemplated by this Agreement, the Company shall have furnished or arranged to be furnished to Parent and to Parent's independent certified public accountants such Company financial statements, audited and unaudited (including, without limitation, except the Company Financial Statements and financial statements for such additional periods as may be required under applicable laws and regulations), workpapers and supporting documentation, as well as such consents by the Company's independent public certified accountants, as are Parent or Parent's independent certified public accountants shall have reasonably requested or may reasonably require in order to include the Company financial statements and the related reports of Company's independent certified public accountants, in satisfaction of all applicable SEC rules and regulations, in Parent's registration statement on Form S-4 to be filed with the SEC as contemplated by this Agreement and rely upon the same. The Company's financial statements included in the Form S-4 shall, at the time of filing of the Form S-4, satisfy the relevant SEC financial reporting and filing requirements.
(F) On or prior to the Effective Time, the Company shall have furnished or arranged to be furnished to Parent and to Parent's independent certified public accountants such workpapers and supporting documentation, as well as such consents by the Company's independent public certified accountants, as are Parent or Parent's independent certified public accountants shall have reasonably requested or may reasonably require in order to include the Company financial statements and the related reports of Company's independent certified public accountants, in satisfaction of all applicable SEC rules and regulations, in Parent's registration statement on Form S-4 as the same shall have been amended, if at all, by Parent and as the Parent same shall have requested acceleration of effectiveness by the SEC as contemplated by this Agreement, or as reflected and rely upon the same. The Company's financial statements included in the Company Form S-4 shall, at the time of effectiveness of the Form S-4, satisfy the relevant SEC Reports filed financial reporting and filing requirements.
(G) On or prior to the Effective Time, and in any event, as required prior to such date hereof in connection with any filings or Section 5.01 of disclosures Parent may deem necessary to make under applicable securities laws, the Disclosure Letter, Company will furnish to Parent and Rodeoto Parent's independent certified public accountants such financial statements, Inc. covenant and agree that neither the Company nor any Company Subsidiary shallsuch workpapers and supporting documentation, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions well as such consents by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current businessindependent public certified accountants, as Parent or commence business operations Parent's independent certified public accountants have reasonably requested or may reasonably require in any country outside the United States or Canada;
(xi) increase the compensation payable or order to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by include the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than Financial Statements and the payment, discharge or satisfaction, related reports of Company's independent certified public accountants in Parent's filing with the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business SEC on Form 8-K covering this Agreement or in accordance with the provisions of this Section 5.01;
(xiv) settle other disclosures or compromise any material Audit, filings that Parent may deem it necessary to make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one handapplicable securities laws, and any of their respective officers, directors, unitholders, owners or Affiliates, on rely upon the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingsame.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing6.01. PREPARATION OF THE PARENT FORM ▇-▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇-▇, THE FORM 8-A AND THE PARENT PROXY STATEMENT; STOCKHOLDERS' MEETING.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, the Company and Parent shall prepare and the time of Company shall file with the ClosingSEC the Proxy Statement, except the Newco Form S-4 and the Form 8-A and Parent shall prepare and file with the SEC the Parent Form S-4. The Proxy Statement will be included as set forth a prospectus in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless Newco Form S-4 and the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses Parent Form S-4. Each of the Company and Parent shall use its commercially reasonable efforts to have the Newco Form S-4 and the Parent Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its commercially reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Newco Form S-4 and the Parent Form S-4 are declared effective under the Securities Act. Each of Parent and the Company Subsidiaries shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be conducted only intaken under any applicable state securities laws in connection with, and in the case of Parent, the issuance of Parent Common Stock in the Merger and, in the case of the Company, the issuance of Newco Common Stock in the Split-Off. The Company shall furnish all information concerning the Company and the holders of Company Subsidiaries Common Stock, and Parent shall not take furnish all information concerning Parent, as may be reasonably requested in connection with any such action except inand the preparation, filing and distribution of the Proxy Statement, the ordinary course of business;
(ii) the Company Newco Form S-4 and the Company Subsidiaries shall use Parent Form S-4. No filing of, or amendment or supplement to, the Parent S-4 will be made by Parent, and no filing of, or amendment or supplement to, the ▇▇▇▇▇ ▇-▇ or the Proxy Statement will be made by the Company, in each case without providing the other party a reasonable best efforts opportunity to preserve substantially intact their business organization, review and comment thereon. If at any time prior to keep available the services of the current employees of Rodeo, Inc. and Effective Time any information relating to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or Parent, or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with of their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitationAffiliates, except as contemplated officers or directors, should be discovered by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, Parent which should be set forth in an amendment or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect supplement to any of the UnitsParent Form S-4, the Incentive Distribution RightsNewco Form S-4 or the Proxy Statement, so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the GP Interest party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or any other ownership interestssupplement describing such information shall be promptly filed with the SEC and, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms extent required by law, disseminated to the stockholders of the Company Partnership Agreement;
(iv) Company. The parties shall notify each other than in promptly of the case receipt of any direct comments from the SEC or indirect wholly-owned Company Subsidiary, combine, split its staff and of any request by the SEC or subdivide, directly its staff for amendments or indirectly, any of supplements to the UnitsProxy Statement, the Incentive Distribution RightsNewco Form S-4, the GP Interest Form 8-A or any the Parent Form S-4 or for additional information and shall supply each other ownership interests with copies of all correspondence between it or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company SubsidiaryRepresentatives, on the one hand, and any of their respective officers, directors, unitholders, owners the SEC or Affiliates, its staff on the other hand, which if entered into prior with respect to the Proxy Statement, the Newco Form S-4, the Parent Form S-4, the Form 8-A, the Merger or the other transactions contemplated by the Transaction Agreements.
(b) The Company shall, as soon as practicable following the date hereof would be of this Agreement (taking into account any delays reasonably required as a result of the occurrence of any event described in the last sentence of this clause (b)), establish a record date following the date of this Agreement for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders' Meeting") solely for the purpose of obtaining the Stockholder Approval. Subject to be disclosed Section 5.02(b), the Company shall, through its Board of Directors, recommend to its stockholders approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (and, if required, the other Transaction Agreements and the transactions contemplated thereby) and shall include such recommendation in the Proxy Statement. Without limiting the generality of the foregoing, the Company's obligations pursuant to the first sentence of this Section 3.20;
6.01(b) shall not be affected by (xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashioni) the corporate structure commencement, public proposal, public disclosure or ownership communication to the Company of any Takeover Proposal or (ii) the withdrawal or modification by the Board of Directors of the Company or any Company Subsidiary other than as contemplated by committee thereof of such Board of Directors' or such committee's approval or recommendation of the Merger or this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Sources: Agreement and Plan of Split Off and Merger (Inverness Medical Technology Inc/De)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing.5.1 PREPARATION OF THE PROXY STATEMENT; STOCKHOLDERS MEETING
(a) Parent and Rodeo, Inc. covenant and agree that, between As promptly as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company shall prepare and file with the SEC the Proxy Statement. The Company Subsidiaries shall be conducted only in, and promptly notify the Company and Parent of any comments from the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company SEC or its staff or any Company Subsidiary has significant business relations;
(iii) request from the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, SEC or as reflected in the Company SEC Reports filed prior its staff for amendments or supplements to the date hereof or Section 5.01 Proxy Statement and shall promptly provide copies of the Disclosure Letter, Parent all correspondence between it and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiaryrepresentatives, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliatesthe SEC and its staff, on the other hand. Each of the Company and the Parent shall use all commercially reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto and to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after all such SEC comments have been resolved. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide the Parent with a reasonable opportunity to review and comment on such document or response, (ii) shall include in such document or response all comments reasonably proposed by the Parent and (iii) shall not file or mail such document or respond to the SEC prior to receiving the Parent's approval, which if entered into prior to approval shall not be unreasonably withheld, delayed or conditioned.
(b) The Company shall, as promptly as practicable following the date hereof would be required of this Agreement, establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the "STOCKHOLDERS MEETING") for the purpose of obtaining Stockholder Approval, regardless of whether the Board of Directors of the Company determines at any time that this Agreement or the Merger is no longer advisable or recommends that the stockholders of the Company reject this Agreement or the Merger, in all cases subject to its rights under Section 4.2(b). The Company shall cause the Stockholders Meeting to be disclosed held as promptly as practicable following the date of this Agreement. The Company shall, through its Board of Directors, recommend to its stockholders that they adopt this Agreement, and shall include such recommendation in the Proxy Statement, in each case subject to its rights under Section 4.2(b). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to this Section 3.20;
(xix5.1(b) materially alter (through mergerto take actions to and hold the Stockholders Meeting for the purpose of obtaining Stockholder Approval shall not be affected by the commencement, liquidationpublic proposal, reorganization, restructuring, conversion public disclosure or in any other fashion) the corporate structure or ownership of communication to the Company or any Company Subsidiary other than as contemplated by this Agreement; orperson of any Takeover Proposal.
(xxc) enter into any contract, agreement, commitment or arrangement to do any The Company agrees that none of the foregoinginformation included or incorporated by reference in the Proxy Statement will (except to the extent revised or superseded by amendments or supplements contemplated hereby), at the date the Proxy Statement is filed with the SEC or mailed to the Company's stockholders or at the time of the Stockholders Meeting, or at the time of any amendment or supplement thereof, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder.
(d) The Company shall retain an agent, on terms or conditions acceptable to the Parent, for the purpose of soliciting proxies on behalf of the Company for the Stockholders Meeting.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 5.1. Preparation of Business Prior to Schedule 13E-3 and Proxy Statement; the ClosingCompany Stockholders Meeting.
(a) Parent Acquiror will, as promptly as practicable, prepare and Rodeofile with the SEC, Inc. covenant and agree thatwill cause its Affiliates to cooperate, between to the date of this Agreement extent necessary, in such preparation and filing, a Rule 13e-3 Transaction Statement on Schedule 13E-3 (the time of "Schedule 13E-3"). Acquiror will use all reasonable efforts, and will cause its Affiliates to cooperate, to the Closingextent necessary, except as set forth in Section 5.01 of to cause the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not Schedule 13E-3 to be unreasonably withheld or delayed:
(i) the businesses mailed to stockholders of the Company and at the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceearliest practicable date.
(b) By way The Company will, as promptly as practicable, prepare and file with the SEC a proxy statement in connection with the vote of amplification the Company's stockholders with respect to the Merger and not limitationthis Agreement (such proxy statement, except as contemplated by this Agreementtogether with any amendments thereof or supplements thereto, or as reflected in each case in the Company SEC Reports filed prior form or forms mailed to the date hereof or Section 5.01 Company's stockholders, are herein called the "Proxy Statement"). The Company will use all reasonable efforts to cause the Proxy Statement to be mailed to stockholders of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither Company at the earliest practicable date.
(c) The Company nor any Company Subsidiary shall, between shall (i) as soon as practicable following the date of this Agreement Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the Closing"Company Stockholders Meeting") for the purpose of obtaining the Required Company Votes, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
and (ii) issuethrough its Board of Directors and the Special Committee, sellrecommend to its stockholders that they approve the transactions contemplated by this Agreement and shall not withdraw, transfer, pledge, dispose of, grant, encumber, amend the terms ofmodify or change such recommendation, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or recommend any other ownership interests offer or proposal, at any time prior to the conclusion of the Company Stockholders Meeting. Notwithstanding clause (including without limitation general and limited partnership interestsii) of the Company or any Company Subsidiary immediately preceding sentence of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Unitsthis subsection 5.1(c), the Incentive Distribution Rights, Special Committee or the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) Board of Directors of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any the concurrence of the UnitsSpecial Committee) may at any time prior to the Effective Time withdraw, modify or change any recommendation regarding this Agreement or the Incentive Distribution RightsMerger, the GP Interest or recommend any other ownership interestsoffer or proposal, except for (A) dividends and other distributions by direct if the Special Committee or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms Board of Directors of the Company Partnership Agreement;
(iv) other than in with the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any concurrence of the UnitsSpecial Committee) after consultation with its counsel, the Incentive Distribution Rights, the GP Interest or determines that taking any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary such action is required in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of accordance with its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary legal duties to the Company's current businessstockholders under applicable law; provided, such withdrawal, modification, change or recommendation shall not affect or excuse the performance, or commence business operations in cure any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company'sbreach, of, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee obligation of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
hereunder (xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described set forth in clause (viii) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by immediately preceding sentence of this Agreement; or
subsection 5.1(c)), including, but not limited to, the requirements in clause (xxi) enter into any contract, agreement, commitment or arrangement to do any of the foregoingimmediately preceding sentence of this subsection 5.1(c) and the requirements in Section 5.5.
Appears in 1 contract
Sources: Merger Agreement (Irvine Apartment Communities Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing6.01. PREPARATION OF THE FORM S-4 AND THE PROXY STATEMENT; STOCKHOLDER MEETINGS.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, the Company shall prepare and file with the SEC the Proxy Statement and the time of Company and Parent shall prepare and Parent shall file with the ClosingSEC the Form S-4, except in which the Proxy Statement will be included as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses a prospectus. Each of the Company and Parent shall use its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and keep the Form S-4 effective for so long as necessary to consummate the Merger. The Company shall use its reasonable efforts to cause the Proxy Statement to be mailed to the stockholders of the Company Subsidiaries as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action required to be conducted only intaken under any applicable state securities Laws in connection with the issuance of shares of Parent Common Stock in the Merger, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) furnish all information concerning the Company and the holders of shares of Company Subsidiaries shall use Common Stock as may be reasonably requested by Parent in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will made by the Company, without providing the other party and its counsel a reasonable best efforts opportunity to preserve substantially intact their business organization, review and comment thereon. If at any time prior to keep available the services of the current employees of Rodeo, Inc. and Effective Time any information relating to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any classParent, or any optionsof their respective Affiliates, warrantsdirectors or officers, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to should be conducted discovered by the Company or (iii) ancillary Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the Company's current businessextent required by Law, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable disseminated to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision stockholders of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Mid Atlantic Medical Services Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing.Section 5.1. PREPARATION OF THE FORM S-4 AND THE PROXY STATEMENT; STOCKHOLDERS MEETINGS
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, the Company and Parent shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Subject to Section 4.2, each of the Company and Parent shall use its reasonable best efforts to (i) have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and (ii) cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and upon the exercise of Adjusted Options, and the time Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action. The Form S-4 and the Proxy Statement shall comply as to form in all material respects with the applicable provisions of the ClosingSecurities Act and the Exchange Act. The Company and Parent shall, except as set forth in Section 5.01 promptly as practicable after receipt thereof, provide the other party copies of any written comments and advise the Disclosure Letter other party of any oral comments, with respect to the Proxy Statement received from the SEC. Parent shall provide the Company with a reasonable opportunity to review and comment on any amendment or as contemplated by supplement to the Form S-4 prior to filing such with the SEC, and shall provide the Company with a copy of all such filings made with the SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Proxy Statement or the Form S-4 shall be made without the approval of this Agreement, unless the Buyer shall otherwise consent in writingboth parties, which consent approval shall not be unreasonably withheld or delayed:; PROVIDED, that with respect to documents filed by a party which are incorporated by reference in the Form S-4 or Proxy Statement, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations or the transactions contemplated by this Agreement. No filing of, or amendment or supplement to, the Form S-4 shall be made by Parent, or to the Proxy Statement shall be made by the Company, without providing the other party the opportunity to review and comment thereon. Parent shall advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. Each party shall advise the other party, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, should be discovered by the Company or Parent which should be set 37 forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company and Parent.
(b) The Company shall, as soon as reasonably practicable, consistent with the process of clearing the Proxy Statement with the SEC and having the SEC declare the Form S-4 effective, all as provided in Section 5.1(a), establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the "COMPANY STOCKHOLDERS MEETING") for the purpose of obtaining the Company Stockholder Approval and shall take all lawful action to solicit adoption of this Agreement by the required Company Stockholder Approval. Unless the Company has terminated this Agreement pursuant to Section 7.1(f) hereof, the Company shall, through its Board of Directors, recommend to its stockholders adoption of this Agreement (the "COMPANY RECOMMENDATION"), and except as expressly permitted by this Agreement, shall not withdraw, amend or modify in a manner adverse to Parent its recommendation. The Company shall ensure that the Company Stockholders Meeting is called, noticed, convened, held and conducted, and that all proxies solicited in connection with the Company Stockholders Meeting are solicited, in compliance with all applicable Legal Provisions. Without limiting the generality of the foregoing, (i) the businesses Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of the holders of Company Common Stock, as required by this Section 5.1(b), shall not be affected by the withdrawal, amendment or modification of the Company Recommendation and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts agrees that its obligations pursuant to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iiithis Section 5.1(b) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld affected by the commencement, public proposal, public disclosure or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material communication to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingTakeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (TMP Worldwide Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior 5.1 Access to Information The Company shall afford Parent and its accountants, legal counsel and other representatives reasonable access during normal business hours during the period prior to the Closing.
Effective Time to (a) Parent and Rodeo, Inc. covenant and agree that, between the date of this Agreement and the time all of the Closingproperties, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreementbooks, unless the Buyer shall otherwise consent in writingcontracts, which consent shall not be unreasonably withheld or delayed:
(i) the businesses commitments and records of the Company and (b) all other information concerning the Company Subsidiaries shall be conducted only inbusiness, properties and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships personnel of the Company as Parent may reasonably request. The Company agrees to provide Parent and the Company Subsidiaries with customersits accountants, contractholders legal counsel and other Persons with whom representatives copies of internal financial statements promptly upon request. No information or knowledge obtained in any investigation pursuant to this Section 5.1 shall affect or be deemed to modify any representation or warranty contained herein or the Company or any Company Subsidiary has significant business relations;
(iii) conditions to the Company and obligations of the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) parties to consummate the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceMerger.
(b) By way of amplification and not limitation, except as contemplated 5.2 Public Disclosure Unless otherwise required by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests law (including, without limitation, any phantom interestsecurities laws) or, general partnership interest as to Parent, by the rules and regulations of the Nasdaq National Market, prior to the Effective Time, no disclosure (whether or limited partnership interestnot in response to an inquiry) of the Company or subject matter of this Agreement shall be made by any Company Subsidiary, party hereto (other than disclosures to Company stockholders pursuant to Section 5.2) unless approved by Parent and the Company prior to release, provided that such approval shall not be unreasonably withheld. Parent has not filed a Form 8-K relating to this Agreement as permitted under clause (ix) of Section 5.01(b);the Closing. The parties have agreed to the text of the joint press release announcing the signing of this Agreement.
(iii) declare5.3 Legal Conditions to the Merger Each of Parent, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, Merger Sub and the Company will take all reasonable actions necessary to comply promptly with all legal requirements that may be imposed on such party with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or Merger and will promptly cooperate with and furnish information to any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than party hereto in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for connection with any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), requirements imposed upon such other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or party in connection with the transactions described Merger. Each party will take all reasonable actions to obtain (and will cooperate with the other parties in clause (viobtaining) above;
(xviii) except as provided in this Agreementany consent, enter intoauthorization, amendorder or approval of or any registration, terminate declaration or waive any provision offiling with, or an exemption by, any agreement or arrangementGovernmental Entity, or enter into any transactionother third party, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion obtained or made by such party or its subsidiaries in connection with the Merger or the taking of any other fashion) the corporate structure action contemplated thereby or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Niku Corp)
Additional Agreements. SECTION 5.01 Conduct Section 5.1 Preparation of Business Prior to the ClosingForm S-4 Proxy Statement; Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between Form S-4 Proxy Statement. As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company and Parent shall otherwise consent prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in writing, which consent shall not the Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus. Each of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Parent shall use reasonable best efforts to preserve substantially intact their have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use all reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business organization, in any jurisdiction in which it is not now so qualified or to keep available file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the services issuance of Parent Common Stock in the current employees of Rodeo, Inc. -34- Merger and to preserve the current relationships of Company shall furnish all information concerning the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom holders of the Company or Common Stock as may be reasonably requested in connection with any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms action. No filing of, or authorize the issuance, sale, pledge, disposition, grant amendment or Encumbrance of any Unitssupplement to, the Incentive Distribution RightsForm S-4 will be made by Parent, and no filing of, or amendment or supplement to the GP Interest Proxy Statement will be made by the Company, in each case, without providing the other party and its respective counsel the reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any other ownership interests (including without limitation general and limited partnership interests) of the Company supplement or any Company Subsidiary of any classamendment has been filed, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any other ownership interests request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or any Company Subsidiary in respect of, in lieu ofParent, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets their respective affiliates, officers or propertiesdirectors, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to should be conducted discovered by the Company or (iii) ancillary Parent which should be set forth in an amendment or supplement to the Company's current businessForm S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or commence business operations omit to state any material fact necessary to make the statements therein, in any country outside light of the United States circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or Canada;
(xi) increase supplement describing such information must be promptly filed with the compensation payable or to become payable SEC and, to the Company'sextent required by Law, any Company Subsidiary's, or Seller's officers or employees, except in disseminated to the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee stockholders of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (CTS Corp)
Additional Agreements. SECTION 5.01 Conduct Preparation of Business Prior to S-4 and the Closing.
(a) Joint Proxy Statement. Parent and Rodeothe Company will, Inc. covenant and agree thatas promptly as practicable, between the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) jointly prepare and will file with the businesses SEC the Joint Proxy Statement in connection with the votes of the stockholders of the Company and shareholders of Parent in respect of the Company Subsidiaries shall Merger and other matters related thereto, and (ii) Parent will file with the SEC the S-4 in connection with the registration under the Securities Act of the shares of Parent Common Stock issuable upon conversion of the Shares and the other transactions contemplated hereby, in which the Joint Proxy Statement will be conducted only in, included as a prospectus. Parent and the Company will, and the Company Subsidiaries shall not take any action except inwill cause their accountants and lawyers to, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue have or cause the S-4 to be declared effective as promptly as practicable after filing with the SEC, including causing their accountants to deliver necessary or required instruments such as opinions, consents and certificates, and will take any other action required or necessary to be taken under federal or state securities Laws or otherwise in force connection with good the registration process (other than qualifying to do business in any jurisdiction which it is not now so qualified or filing a general consent to service of process in any jurisdiction). The Company and responsible insurance companies adequate insurance covering risks of such types and in such amounts Parent shall, as are consistent with past practice.
(b) By way of amplification and not limitationpromptly as practicable after the receipt thereof, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior provide to the date hereof or Section 5.01 other party copies of any written comments and advise the other party of any oral comments in respect of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither Joint Proxy Statement or the Company nor any Company Subsidiary shall, between S-4 received from the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any staff of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) SEC. Each of the Company and Parent will provide the other with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement prior to filing with the SEC and will provide each other with a copy of all such filings with the SEC. Parent will provide the Company with a reasonable opportunity to review and comment on any amendment or supplement on the S-4 prior to filing with SEC and will provide the Company with a copy of all such filings with the SEC. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any Company Subsidiary of any classsupplement or amendment has been filed, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests stop order, the suspension of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution qualification of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or Parent Common Stock issuable in connection with the transactions described Merger for offering or sale in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangementjurisdiction, or enter into any transaction, between request by the Company and/or any Company Subsidiary, on SEC for amendment of the one hand, Form S-4 or comments thereon and any of their respective officers, directors, unitholders, owners responses thereto or Affiliates, on requests by the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership SEC for additional information. Each of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement and Parent will use its reasonable best efforts to do any of cause the foregoingJoint Proxy Statement to be mailed to its stockholders at the earliest practicable date.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct Section 6.01 Preparation of Business Prior to the ClosingForm S-4 and Joint Proxy Statement.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company Parent and the Company Subsidiaries shall prepare, together with USV,, and Parent shall file with the SEC, a joint proxy statement/information statement (the "Joint Proxy Statement") in preliminary form and the Form S-4, in which the Joint Proxy Statement will be conducted only inincluded as a prospectus, and Parent and the Company shall use their reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Parent and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use their reasonable best efforts to preserve substantially intact their business organization, to keep available have the services of Form S-4 declared effective by the current employees of Rodeo, Inc. SEC as promptly as practicable after such filing and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply ensure that it complies in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due the applicable provisions of the Securities Act and with their respective obligations under applicable Law; and
(iv) the Company Exchange Act. Parent and the Company Subsidiaries shall use their reasonable best efforts also take any other action required to continue be taken under any applicable federal and state securities laws in force connection with good the issuance of Parent Common Stock in the Merger and each of the Parent and the Company shall furnish all information concerning itself and its stockholders as may be reasonably requested by the other in connection with the Joint Proxy Statement or any such action. Parent and the Company shall each be solely responsible insurance companies adequate insurance covering risks of such types and for any statement, information or omission in such amounts the Form S-4 or the Joint Proxy Statement relating to it based upon information provided by it for inclusion therein. Palisade agrees to cause USV to furnish all information concerning USV as are consistent may be reasonably requested by Parent or Company in connection with past practicethe Joint Proxy Statement or pursuant to this Article VI.
(b) By way of amplification and not limitationIf, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) receipt of the Company Stockholder Approval or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitationParent Stockholder Approval, any phantom interest, general partnership interest or limited partnership interest) of event occurs with respect to the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, change occurs with respect to any of other information supplied by the UnitsCompany for inclusion in the Form S-4 or the Joint Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Incentive Distribution RightsForm S-4 or the Joint Proxy Statement, the GP Interest Com- pany shall promptly notify Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant supplement to the terms Form S-4 or the Joint Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to Parent's or the Company's stockholders.
(c) If, at any time prior to the receipt of the Company Partnership Agreement;Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to the Parent, any Parent Subsidiary, or any change occurs with respect to other information supplied by the Parent for inclusion in the Form S-4 or the Joint Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Joint Proxy Statement, the Parent shall promptly notify the Company of such event, and the Parent and Company shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Joint Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to Parent's or the Company's stockholders.
(ivd) other than in If, at any time prior to the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests receipt of the Company Stockholder approval or the Parent Stockholder Approval, to Palisade's knowledge, any event occurs with respect to USV, or any Company Subsidiary change occurs with respect to other information supplied by USV for inclusion in respect ofthe Form S-4 or the Joint Proxy Statement, which is required to be described in lieu an amendment of, or in substitution of the Unitsa supplement to, the Incentive Distribution RightsForm S-4 or the Joint Proxy Statement, Palisade shall cause USV to (x) promptly notify the GP Interest Company of such event and (y) to cooperate in the prompt filing with the SEC of any necessary amendment or other ownership interests;supplement to the Form S-4 or the Joint Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to Parent's or the Company's stockholders.
(ve) redeemPalisade agrees that, purchase or otherwise acquireconcurrently with the execution and delivery of this Agreement, directly or indirectlyit shall, any Units, Incentive Distribution Rights or any other ownership interests deliver to the Company a duly executed written consent (the "Company Written Consent") with respect to all shares of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, owned by merger, consolidation or acquisition of stock or assets) any interest it in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms favor of the Credit Agreements;
(x) enter, Merger and approval of this Agreement. The Company shall use its reasonable efforts to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated cause the Joint Proxy Statement to be conducted by the Company or (iii) ancillary mailed to the Company's current business, or commence business operations in any country outside stockholders as promptly as practicable after the United States or Canada;date of this Agreement.
(xif) increase Parent shall, as soon as practicable following the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course date of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter intoduly call, amend, terminate or waive any provision give notice of, any agreement or arrangementconvene and hold an annual meeting of its stockholders (the "Parent Stockholders Meeting") for the purpose of, or enter into any transactionamong other things, between seeking the Company and/or any Company Subsidiary, on Parent Stockholder Approval. Parent shall use its rea- sonable efforts to cause the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior Joint Proxy Statement to be mailed to Parent's stockholders as promptly as practicable after the date hereof would be required of this Agreement. Parent shall, through the Parent Board, recommend to be disclosed pursuant to Section 3.20;its stockholders that they give the Parent Stockholder Approval.
(xixg) materially alter Palisade agrees that, by its execution and delivery of this Agreement, it agrees to (through merger, liquidation, reorganization, restructuring, conversion or in any other fashioni) the corporate structure or ownership vote all shares of the Company or any Company Subsidiary other than as contemplated Parent owned by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement it in favor of the Merger when called upon by the Parent to do any so; (ii) vote all shares of USV owned by it in favor of the foregoingUSV Transaction when called upon by USV to do so; and (iii) vote all shares of Parent owned by it in favor of the USV Transaction when called upon by Parent to do so.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct (i) During the Standstill Period, AK and the MRMP Stockholders agree that they will (A) be present for quorum purposes at any annual or special meeting of Business Prior the Company’s stockholders, and (B) vote or cause to be voted (including in any action by written consent) all shares of the ClosingCompany Common Stock beneficially owned, or deemed to be beneficially owned (as determined under Rule 13d-3 promulgated under the Exchange Act), and entitled to vote as of the record date, by AK and the MRMP Stockholders in favor of the slate of directors recommended by the Board.
(aii) Parent From the Signing Date and Rodeoduring the Standstill Period, Inc. covenant AK and agree the MRMP Stockholders will grant the Company an irrevocable proxy to vote such shares in accordance with the voting obligations set forth in this Term Sheet.
(iii) During the Standstill Period, the MRMP Stockholders shall have the right to designate up to two (2) persons, inclusive initially of DW and LN, to serve as a director on the Board (together, the “Sherwood Designees,” and each, a “Sherwood Designee”); provided, that, between such Sherwood Designee shall, (A) qualify as an “independent director” under the applicable rules of the NYSE and the rules and regulations of the SEC and (B) satisfy the guidelines and policies of the Company with respect to service on the Board applicable to all non-management directors; provided, further, that only one (1) such Sherwood Designee may be an Affiliate of the MRMP Stockholders.
(iv) If, at any time prior to the expiration of the Standstill Period, any of the Sherwood Designees are unable or unwilling to serve as a director, the MRMP Stockholders, for so long as they maintain at least 50% of their current ownership of Common Stock as of the Signing Date, shall have the right to propose to the Company a replacement director with relevant financial and business experience, who shall be subject to the reasonable approval of the Board.
(v) If, at any time prior to the expiration of the Standstill Period, AK is unable or unwilling to serve as a director, AK, for so long as him and his affiliates maintain at least 50% of their current ownership of Common Stock as of the date of this Agreement the Term Sheet, shall have the right to propose to the Company replacement director for himself with relevant financial and business experience, who shall be subject to the reasonable approval of the Board. A▇ further agrees that he will not stand for re-election if his current ownership of Common Stock (excluding his Affiliates) falls below 5.0%.
(vi) If, at any time prior to the expiration of the Standstill Period, JH or KG is unable or unwilling to serve as a director, the remaining Board will identify a mutually acceptable qualified fifth board candidate. Each of AK and the time MRMP Stockholders shall have the ability to recommend candidates to replace JH or KG, subject to the final approval of the Closing, except as set forth Board.
(vii) Any replacement director appointed to the Board in Section 5.01 accordance with clauses (iv) - (vi) shall be deemed a “Director Nominee” for all purposes of the Disclosure Letter or as contemplated Term Sheet.
(viii) The MRMP Stockholders and AK each agree to comply, and cause their Affiliates and Associates to comply, with the terms of this Term Sheet and shall be responsible for any breach of this Term Sheet by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld such Affiliate or delayed:Associate.
(iix) No later than two (2) Business Days (which shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in the businesses State of New York are authorized or obligated to be closed by applicable law) after the Effective Date, the MRMP Stockholders agree to take all necessary actions to irrevocably cease any and all solicitation and other activities in connection with the 2023 Annual Meeting (it being understood and agreed that the MRMP Stockholders are required to vote their shares of the Company and Common Stock beneficially owned as of the record date during the Standstill Period subject to the provisions of this Term Sheet).
(x) During the Standstill Period, the Company Subsidiaries shall will maintain customary directors’ and officers’ liability insurance coverage.
(xi) During the Standstill Period, any changes to the Certificate of Incorporation or By-Laws that would, if implemented, impair stockholder rights must first be conducted only inapproved by the Company’s stockholders at an annual or special meeting of stockholders of the Company, or any action by written consent of the Company’s stockholders in lieu thereof, and any adjournment, postponement, rescheduling, continuation or meeting held in lieu thereof (a “Stockholder Meeting”) in a manner consistent with the By-Laws, Certificate of Incorporation and applicable law prior to being adopted. Nothing in this Term Sheet shall prohibit the Board members from complying with their fiduciary duties as directors of the Company.
(xii) The Company and the Company Subsidiaries shall not take any action except in, to avoid or seek to avoid the ordinary course observance or performance of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted observed or performed by the Company or (iii) ancillary the Board under this Term Sheet, but shall at all times in good faith take all actions that are necessary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course carry out and perform all of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingTerm Sheet.
Appears in 1 contract
Sources: Cooperation and Support Binding Term Sheet (Sherwood Ned L)
Additional Agreements. SECTION 5.01 Conduct Section 5.1 Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; Company Stockholder Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between Form S-4/Proxy Statement. As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company shall otherwise consent prepare the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in writing, which consent shall not the Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus. Each of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Parent shall use commercially reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or cause the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company Form S-4 and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in Proxy Statement to comply with the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted applicable rules and regulations promulgated by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conductedSEC, (ii) currently contemplated to promptly notify the other of, cooperate with each other with respect to, and respond promptly to any comments of the SEC or its staff, (iii) to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and (iv) to keep the Form S-4 effective through the Closing in order to permit the consummation of the Transactions. The Company shall use commercially reasonable efforts to cause the Proxy Statement to be conducted mailed to the Company’s stockholders, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will be made by the Company or (iii) ancillary Parent, in each case, without providing the other party and its respective counsel the reasonable opportunity to review and comment thereon and giving due consideration to such comments. Notwithstanding the immediately preceding sentence, the Company may amend or supplement the Proxy Statement to effect a Company Adverse Recommendation Change. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and any request by the SEC or its staff for amendments or supplements to the Company's current business, Proxy Statement or commence business operations in any country outside the United States Form S-4 or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course for additional information and shall supply each other with copies of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller all correspondence between such party or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiaryrepresentatives, on the one hand, and any of their respective officers, directors, unitholders, owners the SEC or Affiliates, its staff on the other hand, which if entered into with respect to the Proxy Statement, the Form S-4 or the Merger. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order or the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction. If at any time prior to the date hereof would be required Effective Time any information relating to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contractParent, agreement, commitment or arrangement to do any of their respective affiliates, officers or directors, should be discovered by the foregoingCompany or Parent which should be set forth in an amendment or supplement to the Form S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information must be promptly filed with the SEC and, to the extent required by Law, disseminated to the stockholders of the Company.
Appears in 1 contract
Sources: Merger Agreement (Polyone Corp)
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to Form S-4 and the ClosingJoint Proxy Statement; Shareholders Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company and Parent shall otherwise consent prepare and file with the SEC the Joint Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in writing, which consent the Joint Proxy Statement shall not be unreasonably withheld or delayed:
(i) the businesses included as a prospectus. Each of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Parent shall use reasonable best efforts to preserve substantially intact have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and to keep the Form S-4 effective for so long as necessary to complete the Merger. The Company shall use reasonable best efforts to cause the Joint Proxy Statement to be mailed to the holders of the Company Common Shares, and Parent shall use reasonable best efforts to cause the Joint Proxy Statement to be mailed to the holders of shares of Parent Common Stock and Parent Series D Preferred Stock, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities or "blue sky" laws in connection with the issuance of shares of Parent Common Stock and Parent Rights pursuant to the Merger, and the Company shall furnish all information concerning the Company and the holders of the Company Common Shares and rights to acquire Company Common Shares pursuant to the Company Employee Share Plans as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form S-4 will be made by Parent, or the Joint Proxy Statement will be made by the Company or Parent, without providing the other party a reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment thereto has been filed, the issuance of any stop order, the suspension of the qualification of the shares of Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or the Joint Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information and will, as promptly as practicable, provide to the Company copies of all correspondence and filings with the SEC with respect to the Form S-4 and the Joint Proxy Statement. The Company will inform Parent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Joint Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information and will, as promptly as practicable, provide to Parent copies of all correspondence and filings with the SEC with respect to the Joint Proxy Statement. If at any time prior to the Effective Time of the Merger any information relating to the Company or Parent, or any of their business organizationrespective affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein (in the case of the Joint Proxy Statement, in light of the circumstances under which they were made) not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to keep available the services of extent required by law, disseminated to the current employees of Rodeo, Inc. and to preserve the current relationships shareholders of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks stockholders of such types and in such amounts as are consistent with past practiceParent.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the The Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between as soon as practicable following the date of this Agreement Agreement, duly call, give notice of, convene and the Closing, directly or indirectly do, or propose to do, any hold a meeting of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) holders of the Company or any Common Shares (the "Company Subsidiary Shareholders Meeting") for the purpose of any class, or any options, warrants, convertible securities or other rights of any kind obtaining the Company Shareholder Approval. Subject to acquire any UnitsSection 4.02(b), the Incentive Distribution RightsCompany shall, the GP Interest or any other ownership interests (includingthrough its Board of Directors, without limitation, any phantom interest, general partnership interest or limited partnership interest) of recommend to its shareholders that they give the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);Shareholder Approval.
(iiic) declareParent shall, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any as soon as practicable following the date of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter intoduly call, amend, terminate or waive any provision give notice of, any agreement or arrangement, or enter into any transaction, between convene and hold a meeting of the Company and/or any Company Subsidiary, on holders of the one hand, shares of Parent Common Stock and any Parent Series D Preferred Stock (the "Parent Stockholders Meeting") for the purpose of their respective officers, directors, unitholders, owners or Affiliates, on obtaining the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant Parent Stockholder Approval. Subject to Section 3.20;
(xix) materially alter (4.03(b), Parent shall, through mergerits Board of Directors, liquidation, reorganization, restructuring, conversion or in any other fashion) recommend to its stockholders that they give the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingParent Stockholder Approval.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 7.01 Preparation of Business Prior to Form S-4 and the ClosingProxy Statement; Company Special Meeting and Parent Special Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, the Company and Parent shall prepare and file with the time SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement shall be included as part of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses prospectus. Each of the Company and Parent shall use reasonable efforts to have the Form S-4 54 declared effective under the Securities Act as promptly as practicable after such filing. Each of the Company Subsidiaries and Parent shall use reasonable efforts to cause the Proxy Statement to be conducted only inmailed to the Company's stockholders and, if required, Parent's stockholders, respectively, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action required to be taken under any applicable state securities or "blue sky" laws in connection with the issuance of Parent Common Stock pursuant to the Merger, and the Company shall furnish all information concerning the Company and the holders of the Company Subsidiaries Common Stock and rights to acquire the Company Common Stock pursuant to the Company Employee Stock Plans as may be reasonably requested in connection with any such action.
(b) The Company shall, in accordance with all applicable Laws, and the Articles of Incorporation and By-Laws of the Company, duly call, give notice of, convene and hold a special meeting of its stockholders (the "Company Special Meeting") as promptly as practicable after the date hereof for the purpose of considering and taking action upon this Agreement and such other matters as may be appropriate at the Company Special Meeting. Notwithstanding anything in this Agreement to the contrary, the Company shall not take any action except in, which interferes with the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships convening of the Company Special Meeting or the taking of the stockholders' vote at the meeting. The Board of Directors of the Company will include its recommendation that the stockholders of the Company approve and adopt this Agreement and the Company Subsidiaries transactions contemplated hereby in any proxy or other solicitation materials or communications prepared in connection with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceSpecial Meeting.
(bc) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between as soon as practicable following the date of this Agreement and the ClosingAgreement, directly or indirectly doduly call, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose give notice of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general convene and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any hold a meeting of its assets or propertiesstockholders (the "Parent Special Meeting") for the purpose of obtaining the Parent Stockholder Approval. Parent shall, other than transactions through its Board of Directors, recommend to its stockholders that are in they give the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or Parent Stockholder Approval unless otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted determined by the terms Board of the Credit Agreements;
(x) enterDirectors of Parent in good faith, after consultation with outside counsel, as necessary in order to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated comply with its fiduciary duties to Parent and its stockholders under applicable law. The Company shall vote or cause to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in voted any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course shares of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee Parent Capital Stock owned of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice record by the Company or any Acquired Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership favor of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingParent Stockholder Approval.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct Section 5.1 Preparation of Business Prior to the ClosingForm S-4 and the Joint Proxy Statement; Stockholders Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between Form S-4 Proxy Statement. As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company and Parent shall otherwise consent prepare and file with the SEC the Joint Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in writing, which consent shall not the Joint Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus. Each of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Parent shall use reasonable best efforts to preserve substantially intact their business organization, have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and to keep available maintain the services effectiveness of the current employees of Rodeo, Inc. Form S-4 through the Effective Time and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply ensure that it complies in all material respects with their respective obligations the applicable provisions of the Exchange Act or Securities Act. The Company shall use all reasonable best efforts to cause the Joint Proxy Statement to be mailed to the Company's stockholders, and Parent shall use all reasonable best efforts to cause the Joint Proxy Statement to be mailed to Parent's stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and the Company shall furnish all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) information concerning the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks holders of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior Common Stock as may be reasonably requested in connection with any such action. The Company, in connection with a Company Adverse Recommendation Change, may amend or supplement the Form S-4 or Joint Proxy Statement (including by incorporation by reference) to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the effect such a Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms Adverse Recommendation Change. No filing of, or authorize the issuance, sale, pledge, disposition, grant amendment or Encumbrance of any Unitssupplement to, the Incentive Distribution RightsForm S-4 will be made by Parent, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu no filing of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest amendment or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material supplement to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to Joint Proxy Statement will be conducted made by the Company or (iii) ancillary Parent, in each case, without providing the other party and its respective counsel the reasonable opportunity to review and comment thereon. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Company's current business, Joint Proxy Statement or commence business operations in any country outside the United States Form S-4 or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course for additional information and shall supply each other with copies of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller all correspondence between such party or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiaryrepresentatives, on the one hand, and any of their respective officers, directors, unitholders, owners the SEC or Affiliatesits staff, on the other hand, which if entered into with respect to the Joint Proxy Statement, the Form S-4 or the Merger. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order or the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction. If at any time prior to the date hereof Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Form S-4 or the Joint Proxy Statement, so that any of such documents would be not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and the parties shall cooperate in the prompt filing with the SEC of an appropriate amendment or supplement describing such information and, to the extent required by Law, in the disseminating the information contained in such amendment or supplement to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership stockholders of each of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingand Parent.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct Section 5.1 Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, the Company and Parent shall prepare and the time of Company shall file with the ClosingSEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, except in which the Proxy Statement will be included as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses a prospectus. Each of the Company and Parent shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and the Company Subsidiaries shall be conducted only in, and furnish all information concerning the Company and the holders of Company Subsidiaries shall not take Common Stock as may be reasonably requested in connection with any such action except inand the preparation, filing and distribution of the Proxy Statement. No filing of, or amendment or supplement to, the ordinary course of business;
(ii) Form S-4 will be made by Parent, or to the Company Proxy Statement will be made by the Company, without providing the other party the opportunity to review and comment thereon. Parent will advise the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organizationCompany, to keep available the services promptly after it receives notice thereof, of the current employees time when the Form S-4 has become effective, the issuance of Rodeoany stop order, Inc. and to preserve the current relationships suspension of the qualification of Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. The Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or comments thereon and responses thereto or requests by the Company Subsidiaries with customers, contractholders and other Persons with whom SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any Company Subsidiary has significant business relations;
(iii) of their respective Affiliates, officers or directors, should be discovered by the Company and or Parent which should be set forth in an amendment or supplement to any of the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) Form S-4 or the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks Proxy Statement, so that any of such types documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and in an appropriate amendment or supplement describing such amounts as are consistent information shall be promptly filed with past practicethe SEC and, to the extent required by law, disseminated to the stockholders of the Company.
(b) By way The Company will, as soon as reasonably practicable, establish a record date for, duly call, give notice of, convene and hold a meeting of amplification and not limitationits stockholders (the "Stockholders Meeting") for the purpose of obtaining the Stockholder Approval. Unless the Company has terminated this Agreement pursuant to Section 4.2(b) hereof, except as contemplated by the Company will, through its Board of Directors, recommend to its stockholders adoption of this Agreement. Without limiting the generality of the foregoing, or as reflected in the Company SEC Reports filed prior agrees that its obligations pursuant to the date hereof or this Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent 5.1(b) shall not be unreasonably withheld affected by the commencement, public proposal, public disclosure or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material communication to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingTakeover Proposal.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 5.1 Preparation of Business Prior to the Closing.Form S-4 and Proxy Statement; Stockholders --------------------------------------------------------- Meeting. -------
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, the Company and Parent shall prepare and the time of Company shall file with the ClosingSEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, except in which the Proxy Statement will be included as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses a prospectus. Each of the Company and Parent shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. To the extent that presenting this Agreement and the Merger to the Company's stockholders would not violate or otherwise be inconsistent with applicable law, the Company Subsidiaries will use its reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be conducted only intaken under any applicable state securities laws or other applicable laws, rules or regulations in connection with the issuance of Parent Common Stock pursuant to Article II and Section 5.6(b) and under the Company Option Plans and the Company ESPP. Each of Parent and the Company Subsidiaries shall not take furnish all information concerning itself to the other as may be reasonably requested in connection with any such action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organizationpreparation, to keep available the services filing and distribution of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceProxy Statement.
(b) By way of amplification and not limitationThe Company will, except as contemplated by this Agreement, or soon as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between reasonably practicable following the date of this Agreement Agreement, establish a record date (which will be as soon as practicable following the date of this Agreement) for, and, to the extent that convening and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall holding a meeting would not be unreasonably withheld or delayed:
(i) amend, propose to amend, violate or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issuebe inconsistent with applicable law, sellduly call, transfer, pledge, dispose give notice of, grant, encumber, amend convene and hold a meeting of its stockholders (the terms of, or authorize "Stockholders Meeting") for the issuance, sale, pledge, disposition, grant or Encumbrance purpose of any Units, approving and adopting this Agreement. Except to the Incentive Distribution Rights, extent the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) Board of Directors of the Company or any Company Subsidiary determines in good faith, after consultation with outside counsel, that to do so would create a substantial risk of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except liability for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any breach of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary fiduciary duties to the Company's current businessstockholders under applicable law, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiarywill, except for any such change required by U.S. GAAP;
(xiii) paythrough its Board of Directors, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions recommend to its stockholders approval and adoption of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Mandaric Milan)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.01. PREPARATION OF THE FORM S-4 AND THE PROXY STATEMENT; STOCKHOLDERS MEETING.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, the Company and Parent shall prepare and the time of Company shall file with the ClosingSEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, except in which the Proxy Statement will be included as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses a prospectus. Each of the Company and Parent shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use its reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Subsidiaries shall be conducted only in, Stock Plans. Each of Parent and the Company shall furnish all information concerning itself to the other as may be reasonably requested in connection with any such action and the Company Subsidiaries shall not take any action except inpreparation, the ordinary course of business;
(ii) the Company filing and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services distribution of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceProxy Statement.
(b) By way of amplification and not limitationThe Company will, except as contemplated by this Agreement, or soon as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between practicable following the date of this Agreement Agreement, establish a record date (which will be as soon as practicable following the date of this Agreement) for, duly call, give notice of, convene and hold a meeting of its stockholders (the Closing"Stockholders Meeting") for the purpose of obtaining the Stockholder Approval. The Company will, directly or indirectly dothrough its Board of Directors, or propose recommend to doits stockholders approval and adoption of this Agreement, any except to the extent that the Board of Directors of the followingCompany shall have withdrawn or modified its approval of this Agreement or the Merger in accordance with Section 4.02(b) or terminated this Agreement in accordance with Section 7.01(b)(iv). Without limiting the generality of the foregoing, without the prior written consent Company agrees that its obligations pursuant to the first sentence of Buyer, which consent this Section 5.01(b) shall not be unreasonably withheld affected by the commencement, public proposal, public disclosure or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material communication to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingTakeover Proposal.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.1 Proxy Statement/Prospectus; Registration Statement; Other Filings; Board Recommendations.
(a) As promptly as practicable after the execution of this Agreement, Company and Parent will prepare, and file with the SEC, the Proxy Statement/Prospectus, and Parent will prepare and file with the SEC the S-4 in which the Proxy Statement/Prospectus will be included as a prospectus. Each of Parent and RodeoCompany shall provide promptly to the other such information concerning its business and financial statements and affairs as, Inc. covenant in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Proxy Statement/Prospectus and agree thatthe S-4, between or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Proxy Statement/Prospectus and the S-4. Each of Company and Parent will respond to any comments of the SEC, and will use its respective commercially reasonable efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after such filing, and Company will cause the Proxy Statement/Prospectus to be mailed to its shareholders at the earliest practicable time after the S-4 is declared effective by the SEC. As promptly as practicable after the date of this Agreement Agreement, each of Company and Parent will prepare and file any other filings required to be filed by it under the Exchange Act, the Securities Act or any other Federal, foreign or Blue Sky or related securities laws in order to consummate the Merger and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as transactions contemplated by this Agreement, Agreement (the "OTHER FILINGS"). Each of Company and Parent will notify the other promptly upon the receipt of any comments from the SEC or as reflected in its staff and of any request by the Company SEC Reports filed prior or its staff for amendments or supplements to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any UnitsS-4, the Incentive Distribution Rights, Proxy Statement/Prospectus and will supply the GP Interest other with copies of all correspondence between such party or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiaryrepresentatives, on the one hand, and any of their respective officers, directors, unitholders, owners the SEC or Affiliatesits staff, on the other hand, which if entered into prior with respect to the date hereof would be S-4, the Proxy Statement/Prospectus or the Merger. Each of Company and Parent will cause all documents that it is responsible for filing with the SEC under this Section 5.1(a) to comply in all material respects with all applicable requirements of law and the rules and regulations promulgated thereunder. Whenever any event occurs which is required to be disclosed pursuant set forth in an amendment or supplement to the Proxy Statement/Prospectus or the S-4, Company or Parent, as the case may be, will promptly inform the other of such occurrence and cooperate in filing with the SEC or its staff, and/or mailing to shareholders of Company, such amendment or supplement.
(b) Subject to Section 3.20;
(xix5.2(c) materially alter (through mergerbelow, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership Proxy Statement/Prospectus will include the recommendation of the Board of Directors of Company or any Company Subsidiary other than as contemplated by in favor of approval of this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any the Agreement of Merger and approval of the foregoingMerger.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.1 PREPARATION OF FORM S-4 AND PROXY STATEMENT/PROSPECTUS; COMPANY STOCKHOLDERS MEETING.
(a) As promptly as practicable following the date hereof, Parent and RodeoCompany shall prepare and file with the SEC preliminary proxy materials which shall constitute the Proxy Statement/ Prospectus (such proxy statement/prospectus, Inc. covenant and agree thatany amendments or supplements thereto, between the date "PROXY STATEMENT/PROSPECTUS") and Parent shall prepare and file with the SEC a registration statement on Form S-4 with respect to the issuance of this Agreement Parent Common Stock in the Merger (the "FORM S-4"). The Proxy Statement/ Prospectus will be included in the Form S-4 as Parent's prospectus. The Form S-4 and the Proxy Statement/Prospectus shall comply as to form in all material respects with the applicable provisions of the Securities Act and the Exchange Act. Each of Parent and the Company shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after filing with the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger. Parent and the Company shall, as promptly as practicable after receipt thereof, provide copies of any written comments received from the SEC with respect to the Proxy Statement/ Prospectus to the other party and advise the other party of any oral comments with respect to the Proxy Statement/Prospectus received from the SEC. The Company shall use its reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities laws in connection with the Share Issuance and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action. Each of the Company and Parent will inform the other party, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Form S-4 or the Proxy Statement/Prospectus, as the case may be, or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement/Prospectus, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company. Parent agrees that none of the information supplied or to be supplied by Parent for inclusion or incorporation by reference in the Proxy Statement/Prospectus and each amendment or supplement thereto, at the time of mailing thereof and at the time of the ClosingCompany Stockholders Meeting, except as set forth will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in Section 5.01 light of the Disclosure Letter circumstances under which they were made, not misleading or as contemplated be false or misleading with respect to any material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading. The Company agrees that none of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Proxy Statement/Prospectus and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Company Stockholders Meeting, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or be false or misleading with respect to any material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of circumstances under which they are made, not misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading. For purposes of the foregoing, it is understood and agreed that information concerning or related to Parent will be deemed to have been supplied by Parent and information concerning or related to the Company and the Company Stockholders Meeting shall be deemed to have been supplied by the Company. Each of the Company and Parent will provide Parent or the Company, respectively, with a reasonable opportunity to review and comment on any amendment or supplement to the Proxy Statement/Prospectus and the Form S- 4, respectively, prior to filing such with the SEC, and will provide the other provision party with a reasonable number of this Agreement, unless copies of all such filings made with the Buyer SEC. No amendment or supplement to the information supplied by Parent or the Company for inclusion in the Proxy Statement/Prospectus shall otherwise consent in writingbe made without the approval of Parent or the Company, which consent approval shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way The Company shall, as promptly as practicable following the execution of amplification and not limitation, except as contemplated by this Agreement, or as reflected in duly call, give notice of, convene and hold a meeting of its stockholders (the "COMPANY STOCKHOLDERS MEETING") for the purpose of obtaining the Required Company SEC Reports filed prior Vote with respect to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date adoption of this Agreement and (PROVIDED that it is understood that it is the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) intention of the Company or any that the Company Subsidiary Stockholder Meeting will, to the extent reasonably practicable, be scheduled such that it shall occur reasonably proximate to the Effective Time), and shall take all lawful action to solicit the adoption of any classthis Agreement by the Required Company Vote, or any options, warrants, convertible securities or other and subject to SECTION 5.4 and without limiting its rights of any kind to acquire any Unitsunder SECTION 7.1(f), the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) Board of Directors of the Company or any Company Subsidiary, other than as permitted under clause (ix) shall recommend adoption of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any this Agreement by the stockholders of the UnitsCompany. Without limiting the generality of the foregoing and without limiting its rights pursuant to SECTIONS 5.4 and 7.1(f), the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions agrees that its obligations pursuant to the terms first sentence of this SECTION 5.1(b)shall not be affected by the Company Partnership Agreement;
(iv) other than in the case of any direct commencement, public proposal, public disclosure or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material communication to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
Acquisition Proposal (xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN ActSECTION 5.4(b);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing).
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct Section 6.01 Preparation of Business Prior to the ClosingForm S-4 and the Joint Proxy Statement; Stockholders Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company and Parent shall otherwise consent prepare and file with the SEC a joint proxy statement (the "Joint Proxy Statement") in writingpreliminary form and Parent shall prepare and file with the SEC the Form S-4, in which consent shall not the Joint Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus, and each of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Parent shall use its reasonable best efforts to preserve substantially intact their business organization, respond as promptly as practicable to keep available the services any comments of the current employees of Rodeo, Inc. and to preserve the current relationships SEC with respect thereto. Each of the Company and Parent shall use its reasonable efforts to have the Company Subsidiaries with customers, contractholders Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and other Persons with whom to maintain the Company or any Company Subsidiary has significant business relations;
(iii) effectiveness of the Company S-4 through the Effective Time and the Company Subsidiaries shall comply to ensure that it complies in all material respects with their respective obligations the applicable provisions of the Exchange Act or Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Stock Plans and the Company shall furnish all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) information concerning the Company and the holders of the Company Subsidiaries Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Plans as may be reasonably requested in connection with any such action. The parties shall use their reasonable best efforts notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to continue in force the Joint Proxy Statement or the Form S-4 or for additional information and shall supply each other with good copies of all correspondence between such or any of its representatives, on the one hand, and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent the SEC or its staff, on the other hand, with past practicerespect to the Joint Proxy Statement, the Form S-4 or the Merger.
(b) By way of amplification and not limitationIf, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) receipt of the Company Stockholder Approval or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitationParent Stockholder Approval, any phantom interest, general partnership interest or limited partnership interest) of event occurs with respect to the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, change occurs with respect to any of other information supplied by the UnitsCompany for inclusion in the Joint Proxy Statement or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Incentive Distribution RightsJoint Proxy Statement or the Form S-4, the GP Interest Company shall promptly notify Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant supplement to the terms Joint Proxy Statement and the Form S-4 and, as required by Law, in disseminating the information contained in such amendment or supplement to Parent's or the Company's stockholders.
(c) If, at any time prior to the receipt of the Company Partnership Agreement;
(iv) Stockholder Approval or Parent Stockholder Approval, any event occurs with respect to Parent or any Parent Subsidiary, or change occurs with respect to other than information supplied by Parent for inclusion in the case of any direct Joint Proxy Statement or indirect wholly-owned Company Subsidiarythe Form S-4, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary which is required to be described in respect of, in lieu an amendment of, or in substitution of the Unitsa supplement to, the Incentive Distribution RightsJoint Proxy Statement or the Form S-4, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of Parent shall promptly notify the Company or any of such event, and Parent and the Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 shall cooperate in the aggregate for all transactions pursuant prompt filing with the SEC of any necessary amendment or supplement to this subsection (vi);
(vii) except for Permitted Encumbrances or the Joint Proxy Statement and the Form S-4 and, as required by any Material ContractLaw, leasein disseminating the information contained in such amendment or supplement to Parent's or the Company's stockholders.
(d) The Company shall, licenseas soon as practicable following the date of this Agreement, mortgage or otherwise encumber or subject to any Encumbranceduly call, or agree to encumber or subject to any Encumbrancegive notice of, any convene and hold a meeting of its assets stockholders (the "Company Stockholders Meeting") for the purpose of seeking the Company Stockholder Approval. The Company shall use its reasonable efforts to cause the Joint Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the date of this Agreement. The Company shall, through the Company Board, recommend to its stockholders that they give the Company Stockholder Approval (the "Company Recommendation"), except to the extent that the Company Board shall have withdrawn or propertiesmodified its approval or recommendation of this Agreement or the Merger as permitted by and determined in accordance with the last sentence of Section 5.02(b).
(e) Parent shall, other than transactions as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Parent Stockholders Meeting") for the purpose of seeking Parent Stockholder Approval. Parent shall use its reasonable efforts to cause the Joint Proxy Statement to be mailed to Parent's stockholders as promptly as practicable after the date of this Agreement. Parent shall, through Parent Board, recommend to its stockholders that are they give Parent Stockholder Approval (the "Parent Recommendation").
(f) The Company shall use all reasonable efforts to cause to be delivered to Parent a letter of Deloitte & Touche LLP, the Company's independent public accountants, dated a date within two Business Days before the date on which the Form S-4 shall become effective and addressed to Parent, in form and substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the ordinary course Form S-4.
(g) Parent shall use all reasonable efforts to cause to be delivered to the Company a letter of business Deloitte & Touche LLP, Parent's independent public accountants, dated a date within two Business Days before the date on which the Form S-4 shall become effective and not material addressed to the Company, in form and substance reasonably satisfactory to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required customary in scope and substance for letters delivered by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or independent public accountants in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior registration statements similar to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingForm S-4.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to the ClosingForm S-4 and the Joint Proxy Statement; Stockholders Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, i-Cube and Razorfish shall prepare and file with the SEC the Joint Proxy Statement and Razorfish shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of i- Cube and Razorfish shall use reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. i-Cube will use all reasonable efforts to cause the Joint Proxy Statement to be mailed to i-Cube's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Razorfish will use all reasonable efforts to cause the Joint Proxy Statement to be mailed to Razorfish's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Razorfish shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Razorfish Common Stock in the Merger and i-Cube shall furnish all information concerning i-Cube and the time holders of i-Cube Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Razorfish, or the Joint Proxy Statement will be made by either Razorfish or i-Cube, without providing the other party the opportunity to review and comment thereon. Razorfish will advise i-Cube, promptly after it receives notice thereof, of the Closingtime when the Form S-4 has become effective or any supplement or amendment has been filed, except as the issuance of any stop order, the suspension of the qualification of the Razorfish Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to i-Cube or Razorfish, or any of their respective affiliates, officers or directors, should be discovered by i-Cube or Razorfish which should be set forth in Section 5.01 an amendment or supplement to any of the Disclosure Letter Form S-4 or as contemplated by the Joint Proxy Statement, so that any other provision of this Agreementsuch documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses light of the Company circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and the Company Subsidiaries an appropriate amendment or supplement describing such information shall be conducted only in, and promptly filed with the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organizationSEC and, to keep available the services extent required by law, disseminated to the stockholders of the current employees of Rodeo, Inc. i-Cube and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceRazorfish.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary i-Cube shall, between as soon as practicable following the date of this Agreement Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "i-Cube Stockholders Meeting") for the purpose of obtaining the i-Cube Stockholder Approval and shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger and the Closing, directly or indirectly do, or propose to do, any other transactions contemplated hereby. Without limiting the generality of the followingforegoing but subject to its rights to terminate this Agreement pursuant to Section 4.02(b), without i-Cube agrees that its obligations pursuant to the prior written consent first sentence of Buyer, which consent this Section 5.01(b) shall not be unreasonably withheld affected by the commencement, public proposal, public disclosure or delayed:communication to i-Cube of any i-Cube Takeover Proposal.
(ic) amendRazorfish shall, propose to amend, or otherwise change its Certificate as soon as practicable following the date of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter intoduly call, amend, terminate or waive any provision give notice of, any agreement or arrangementconvene and hold a meeting of its stockholders (the "Razorfish Stockholders Meeting") for the purpose of obtaining the Razorfish Stockholder Approval and shall, or enter into any transactionthrough its Board of Directors, between recommend to its stockholders the Company and/or any Company Subsidiaryapproval and adoption of this Agreement, the Merger and the other transactions contemplated hereby.
(d) i-Cube and Razorfish will use best efforts to hold the i-Cube Stockholders Meeting and the Razorfish Stockholders Meeting on the one handsame day as soon as reasonably practicable after the date hereof.
(e) Concurrently herewith, each of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and any of their respective officers, directors, unitholders, owners or Affiliates, on ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the other hand, which if "i-Cube Shareholder Group") has entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;i-Cube Voting Agreement with Razorfish in substantially the form attached hereto as Exhibit A. ---------
(xixf) materially alter Concurrently herewith, each of Spray Ventures AB, Communicade, Inc., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, (through merger, liquidation, reorganization, restructuring, conversion or the "Razorfish Shareholder Group") has entered into the Razorfish Voting Agreement with i-Cube in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than form attached hereto as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.Exhibit A-1. -----------
Appears in 1 contract
Sources: Merger Agreement (Razorfish Inc)
Additional Agreements. SECTION 5.01 Conduct 5.1 Preparation of Business Prior to Form S-4 and the ClosingProxy Statement; Stockholder Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between Promptly following the date of this Agreement, the Company shall prepare and file with the SEC the Proxy Statement, and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use its reasonable best efforts as promptly as practicable to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Stock in the Merger, and the Company shall furnish all information concerning the Company and the holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Stock Plans as may be reasonably requested in connection with any such action.
(b) The Company will, as promptly as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") for the purpose of approving this Agreement and the time transactions contemplated by this Agreement. The Company will, through its Board of Directors, recommend to its stockholders approval of the Closingforegoing matters, except as set forth in Section 5.01 3.1(p). Such recommendation, together with a copy of the Disclosure Letter or opinion referred to in Section 3.1(o), shall be included in the Proxy Statement. The Company will use reasonable efforts to hold such meeting as contemplated by any other provision soon as practicable after the date hereof.
(c) The Company will cause its transfer agent to make stock transfer records relating to the Company available to the extent reasonably necessary to effectuate the intent of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 5.1 Preparation of Business Prior to the ClosingForm S-4, Proxy Statement; Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As promptly as practicable following the date of this Agreement Agreement, Newco and Company shall prepare, and Newco shall file with the time SEC, the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Newco and Company shall use all reasonable efforts to have the ClosingForm S-4 declared effective under the Securities Act, except and for the Proxy Statement to be cleared under the Exchange Act, as set forth in Section 5.01 of the Disclosure Letter or promptly as contemplated by practicable after such filing. Without limiting any other provision of this Agreementhereinabove contained, unless the Buyer shall otherwise consent in writingForm S-4 and the Proxy Statement will contain, which consent shall not be unreasonably withheld without limitation, such information and disclosure reasonably requested by either Newco or delayed:
Company so that (i) the businesses Form S-4 conforms in both form and substance to the requirements of the Company and the Company Subsidiaries shall be conducted only inSecurities Act, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Proxy Statement conforms in both form and substance to the requirements of the Exchange Act. Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, cause the Proxy Statement to keep available be mailed to holders of Company Common Stock as promptly as practicable after the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceForm S-4 is declared effective.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed If at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent Effective Time there shall not be unreasonably withheld or delayed:
occur (i) amend, propose any event with respect to amendCompany or any of its Subsidiaries, or otherwise change its Certificate of Limited Partnership with respect to other information supplied by Company for inclusion in the Form S-4 or the Company Partnership Agreement Proxy Statement or similar organizational documents;
(ii) issueany event with respect to Newco, sellor with respect to information supplied by Newco for inclusion in the Form S-4 or the Proxy Statement, transferin either case, pledge, dispose of, grant, encumber, amend the terms which event is required to be described in an amendment of, or authorize a supplement to, the issuanceForm S-4 or the Proxy Statement, salesuch event shall be so described, pledgeand such amendment or supplement shall be promptly filed with the SEC and, dispositionas required by law, grant or Encumbrance disseminated to the stockholders of Company.
(c) Each of Company and Newco shall promptly notify the other of the receipt of any Units, comments from the Incentive Distribution Rights, the GP Interest SEC or its staff or any other ownership interests (including without limitation general appropriate government official and limited partnership interests) of the Company or any Company Subsidiary of any class, requests by the SEC or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest its staff or any other ownership interests (including, without limitation, any phantom interest, general partnership interest appropriate government official for amendments or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect supplements to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance filings with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or SEC in connection with the Merger and the other transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate contemplated hereby or waive for additional information and shall supply the other with copies of all correspondence between Company or any provision of, any agreement or arrangementof its representatives, or enter into Newco or any transactionof its representatives, between as the Company and/or any Company Subsidiarycase may be, on the one hand, and the SEC or its staff or any of their respective officers, directors, unitholders, owners or Affiliatesother appropriate government official, on the other hand, with respect thereto. Company and Newco shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. Company and Newco shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining Company Stockholder Approval and subject to Section 4.3, the Board of Directors of Company shall recommend to Company’s stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the “Company Recommendation”); provided, however, that Company’s Board of Directors shall not be required to make such Company Recommendation to the extent that it is permitted to effect a Change in Company Recommendation pursuant to Section 4.3. Without limiting the generality of the foregoing, Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to Company of any Company Takeover Proposal. Notwithstanding any Change in Company Recommendation, unless otherwise directed in writing by Newco, this Agreement and the Merger shall be submitted to the stockholders of Company at Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve Company of such obligation, provided, however, that if the Board of Directors of Company shall have effected a Change in Company Recommendation in accordance with this Agreement, then in submitting this Agreement to Company’s stockholders, the Board of Directors of Company may submit this Agreement to Company’s stockholders without recommendation (although the resolutions adopting this Agreement as of the date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to Company’s stockholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law. If required by applicable law or stock exchange requirements, or if entered into Parent elects in its discretion to submit this Agreement to its stockholders or Newco stockholders for approval, Parent and/or Newco, as applicable, shall submit this Agreement to their respective shareholders for approval at a special meeting to be held as promptly as practicable following effectiveness of the Form S-4 and on the timing described in Section 5.1(e), and by approving execution of this Agreement the Board of Directors of Parent agrees that it shall, at the time any proxy statement soliciting approval of this Agreement and the transactions contemplated hereby is mailed to the stockholders of Parent, recommend that Parent’s stockholders vote for such approval, and it shall cause the Board of Directors of Newco to recommend that Newco’s stockholder vote for such approval; provided that Parent’s determination as to whether it shall submit this Agreement to its and/or Newco’s stockholders for approval shall be made prior to the date hereof would be required to be disclosed pursuant to Section 3.20;initial filing of the Form S-4.
(xixe) materially alter (through mergerCompany, liquidationNewco and Parent shall coordinate and cooperate with respect to the timing of their respective stockholders meeting, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership and shall use reasonable best efforts to hold each of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any such meetings within five business days of the foregoingeach other.
Appears in 1 contract
Sources: Merger Agreement (Partners Trust Financial Group Inc)
Additional Agreements. SECTION 5.01 Conduct 6.01. Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; ---------------------------------------------------- Shareholders Meetings; Adoption by Sole Shareholder.
(a) The Company, Parent ---------------------------------------------------- and RodeoNewco shall prepare and file with the SEC the Proxy Statement in preliminary form and Parent, Inc. covenant and agree that, between the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and Newco shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company, Parent and Newco shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of the Company, Parent and Newco shall use its reasonable best efforts to cause the Proxy Statement to be mailed to its respective shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Newco shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Newco Common Stock in the Merger and under the Company Subsidiaries shall be conducted only inStock Plans and the Parent Stock Plans, and the Company and Parent shall furnish all information concerning the Company Subsidiaries shall not take any action except inor Parent, the ordinary course of business;
(ii) the Company as applicable, and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships holders of the Company Common Stock or Parent Common Stock and rights to acquire Company Common Stock or Parent Common Stock pursuant to the Company Stock Plans or the Parent Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such party or any of its Representatives, on the one hand, and the Company Subsidiaries SEC or its staff, on the other hand, with customersrespect to the Proxy Statement, contractholders and other Persons with whom the Company Form S-4 or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceMerger.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed If prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor Merger Effective Time any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, event occurs with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants any change occurs with respect to information supplied by or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition on behalf of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except the Company for transactions not exceeding $15,000,000 individually or $30,000,000 inclusion in the aggregate for all transactions pursuant Proxy Statement or the Form S-4 which, in each case, is required to this subsection (vi);
(vii) except for Permitted Encumbrances be described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, the Company shall promptly notify Parent of such event, and the Company shall cooperate with Parent and Newco in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement and Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the Company's shareholders and to Parent's shareholders.
(c) If prior to the Merger Effective Time any Material Contractevent occurs with respect to Parent or any Parent Subsidiary or any change occurs with respect to information supplied by or on behalf of Parent for inclusion in the Proxy Statement or the Form S-4 which, leasein each case, license, mortgage or otherwise encumber or subject is required to any Encumbrancebe described in an amendment of, or agree a supplement to, the Proxy Statement or the Form S-4, Parent shall promptly notify the Company of such event, and Parent shall cooperate with Company in the prompt filing with the SEC of any necessary amendment or supplement to encumber the Proxy Statement and the Form S-4 and, as required by law, in disseminating the information contained in such amendment or subject supplement to any Encumbrancethe Company's shareholders and to Parent's shareholders.
(d) The Company shall, any as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its assets shareholders (the "Company Shareholders Meeting") for the purpose of seeking the ---------------------------- Company Shareholder Approval. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company's shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Subject to Section 5.02(b), the Company shall, through its Board of Directors, recommend to its shareholders that they give the Company Shareholder Approval. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first two sentences of this Section 6.01(d) shall not be affected by the commencement, public proposal, public disclosure or propertiescommunication to the Company of any Company Competing Transaction.
(e) Parent shall, other than transactions as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Parent Shareholders Meeting") for the purpose of seeking the --------------------------- Parent Shareholder Approval. The Parent shall use its reasonable best efforts to cause the Proxy Statement to be mailed to the Parent's shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Subject to Section 5.03(b), Parent shall, through its Board of Directors, recommend to its shareholders that are they give the Parent Shareholder Approval. Without limiting the generality of the foregoing, Parent agrees that its obligations pursuant to the first two sentences of this Section 6.01(e) shall not be affected by the commencement, public proposal, public disclosure or communication to Parent of any Parent Competing Transaction.
(f) The Company shall use its reasonable best efforts to cause to be delivered to Parent a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Company's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to Parent, in form and substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the ordinary course Form S-4.
(g) Parent shall use its reasonable best efforts to cause to be delivered to the Company a letter of PricewaterhouseCoopers LLP, Parent's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and not material addressed to the Company, in form and substance reasonably satisfactory to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required customary in scope and substance for letters delivered by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or independent public accountants in connection with registration statements similar to the transactions described in clause (vi) above;Form S-4.
(xviiih) except Parent, as provided in sole shareholder of Newco, shall adopt this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Sources: Agreement and Plan of Exchange and Merger (Commonwealth Edison Co)
Additional Agreements. SECTION 5.01 Conduct 5.1 Preparation of Business Prior S-4 and the Proxy Statement. Pogo and Arch shall promptly prepare and file with the SEC the Proxy Statement and Pogo shall prepare and file with the SEC the S-4, in which the Proxy Statement will be included as a prospectus. Each of Pogo and Arch shall use all reasonable efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of Arch and Pogo shall use all reasonable efforts to cause the Proxy Statement to be mailed to stockholders of Arch at the earliest practicable date. Pogo shall use all reasonable efforts to obtain all necessary state securities laws or "blue sky" permits, approvals and registrations in connection with the issuance of Pogo Common Stock in the Merger and upon the exercise of Arch Stock Options (as defined in Section 5.8), and Arch shall furnish all information concerning Arch and the holders of Arch Common Stock and Convertible Preferred Stock as may be reasonably requested in connection with obtaining such permits, approvals and registrations. If at any time prior to the Closing.
(a) Parent Effective Time any event with respect to Arch or any of its Subsidiaries, or with respect to other information supplied by Arch for inclusion in the Proxy Statement or the S-4, shall occur which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the S-4, such event shall be so described, and Rodeosuch amendment or supplement shall be promptly filed with the SEC and, Inc. covenant and agree thatas required by law, between disseminated to the date stockholders of this Agreement Arch. The Proxy Statement and the time of the ClosingS-4, except insofar as set forth in Section 5.01 of the Disclosure Letter it relates to Arch or its Subsidiaries or other information supplied by Arch for inclusion therein, will comply as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply form in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company provisions of the Exchange Act and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good rules and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed regulations thereunder. If at any time prior to the date hereof Effective Time any event with respect to Pogo or Section 5.01 any of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly doits Subsidiaries, or propose with respect to doother information supplied by Pogo or Sub for inclusion in the S-4, any of the following, without the prior written consent of Buyer, shall occur which consent shall not is required to be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms described in an amendment of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Unitsa supplement to, the Incentive Distribution RightsS-4, such event shall be so described, and such amendment or supplement shall be promptly filed with the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any classSEC. The S-4, or any optionsinsofar as it relates to Pogo, warrants, convertible securities Sub or other rights Subsidiaries of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend Pogo or other distribution payable information supplied by Pogo or Sub for inclusion therein, will comply as to form in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance respects with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Exchange Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in and the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, rules and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingregulations thereunder.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.1 PREPARATION OF THE FORM S-4, JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) Parent and Rodeo, Inc. covenant and agree that, between As promptly as practicable following the date of this Agreement Agreement, Parent and the time Company shall prepare, and Parent shall file with the SEC, the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Parent and the ClosingCompany shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act, except and for the Joint Proxy Statement to be cleared under the Exchange Act, as set forth in Section 5.01 of the Disclosure Letter or promptly as contemplated by practicable after such filing. Without limiting any other provision of this Agreementhereinabove contained, unless the Buyer shall otherwise consent in writingForm S-4 and the Joint Proxy Statement will contain, which consent shall not be unreasonably withheld without limitation, such information and disclosure reasonably requested by either Parent or delayed:
the Company so that (i) the businesses Form S-4 conforms in both form and substance to the requirements of the Company and the Company Subsidiaries shall be conducted only inSecurities Act, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Joint Proxy Statement conforms in both form and substance to the requirements of the Exchange Act. The Company and the Company Subsidiaries Parent shall each use reasonable best efforts to preserve substantially intact their business organizationcause the Joint Proxy Statement to be mailed to holders of Company Common Stock and Parent Common Stock, to keep available respectively, as promptly as practicable after the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceForm S-4 is declared effective.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed If at any time prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent Effective Time there shall not be unreasonably withheld or delayed:
occur (i) amend, propose any event with respect to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any of its Subsidiaries, or with respect to other information supplied by Company Subsidiary for inclusion in the Form S-4 or the Joint Proxy Statement or (ii) any event with respect to Parent or its Subsidiaries, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Joint Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement to, the Form S-4 or the Joint Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company and Parent.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any class, comments from the SEC or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest its staff or any other ownership interests (including, without limitation, appropriate government official and of any phantom interest, general partnership interest requests by the SEC or limited partnership interest) its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and the other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu ofits representatives, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest Parent or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or propertiesrepresentatives, other than transactions that are in as the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiarycase may be, on the one hand, and the SEC or its staff or any of their respective officers, directors, unitholders, owners or Affiliatesother appropriate government official, on the other hand, which with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Joint Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Joint Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) Each of the Company and Parent shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting and Parent Stockholders Meeting, respectively, in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and Parent Stockholder Approval, respectively, and each shall coordinate with the other regarding the timing of such meetings.
(e) Subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (the "COMPANY RECOMMENDATION"); provided, however, that the Company's Board of Directors shall not be required to make such Company Recommendation to the extent that it is permitted to effect a Change in the Company Recommendation pursuant to Section 4.3. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(e) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation, provided, however, that if entered into prior the Board of Directors of the Company shall have effected a Change in the Company Recommendation in accordance with this Agreement, then in submitting this Agreement to the Company's stockholders, the Board of Directors of the Company may submit this Agreement to the Company's stockholders without recommendation (although the resolutions adopting this Agreement and the Plan of Merger as of the date hereof would may not be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through mergerrescinded or amended), liquidation, reorganization, restructuring, conversion or in any other fashion) which event the corporate structure or ownership Board of Directors of the Company may communicate the basis for its lack of a recommendation to the Company's stockholders in the Joint Proxy Statement or any Company Subsidiary other than as contemplated an appropriate amendment or supplement thereto to the extent required by law.
(f) The Board of Directors of Parent shall use its reasonable best efforts to obtain the Parent Stockholder Approval and to recommend to Parent's stockholders the approval and adoption of this Agreement; or
, the Merger and the other transactions contemplated hereby (xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing"PARENT RECOMMENDATION").
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.1 PREPARATION OF FORM S-4 AND THE JOINT PROXY STATEMENT; SHAREHOLDER MEETINGS.
(a) Promptly following the date of this Agreement, the Company and Parent shall prepare and file with the SEC the Joint Proxy Statement, and Parent shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of the Company and Parent will use its reasonable best efforts to cause the Joint Proxy Statement to be mailed to its respective shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities law in connection with the issuance of Parent Common Stock in the Merger, and the Company shall furnish all information concerning the Company and the holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Stock Plans as may be reasonably required in connection with any such action. Each of Parent and Rodeothe Company shall furnish all information concerning itself to the other as may be reasonably requested in connection with any such action and the preparation, Inc. covenant filing and distribution of the Form S-4 and the preparation, filing and distribution of the Joint Proxy Statement. The Company, Parent and Sub each agree thatto correct any information provided by it for use in the Form S-4 or the Joint Proxy Statement which shall have become false or misleading. The Company acknowledges that Parent will include in the Joint Proxy Statement such information concerning the transactions pursuant to the F4LH Merger Agreement as may be required to be included to permit Parent to seek any approvals of shareholders which may be required to be obtained in connection with the transactions pursuant to the F4LH Merger Agreement.
(b) The Company, between acting through its Board of Directors, shall, in accordance with its Articles of Incorporation and By-Laws and subject to the other provisions of this Section 5.1(b), promptly and duly call, give notice of, convene and hold as soon as practicable following the date upon which the Form S-4 becomes effective a meeting of the holders of Company Common Stock for the purpose of voting to approve and adopt this Agreement and the transactions contemplated hereby (the date of which meeting shall be as soon as practicable following Parent's shareholder meeting referred to below, but shall be at least two business days after the date of Parent's shareholder meeting referred to below), and (i) recommend approval and adoption of this Agreement and the time of Merger by the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses shareholders of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected include in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.Joint Proxy
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the ClosingSection 5.1 PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company and Acquiror shall otherwise consent prepare and file with the SEC the Joint Proxy Statement and Acquiror shall prepare and file with the SEC the Form S-4, in writing, which consent shall not the Joint Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus. Each of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Acquiror shall use reasonable best efforts to preserve substantially intact have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all reasonable best efforts to cause the Joint Proxy Statement to be mailed to the Company's stockholders, and Acquiror will use all reasonable best efforts to cause the Joint Proxy Statement to be mailed to Acquiror's stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Acquiror shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Acquiror Common Stock in the Merger and the Company shall furnish all information concerning the Company and the holders of the Company Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Acquiror or to the Joint Proxy Statement will be made by Acquiror or the Company without providing the other party the opportunity to review and comment thereon. Acquiror will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Acquiror Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Acquiror, or any of their business organizationrespective affiliates, officers or directors, should be discovered by the Company or Acquiror which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to keep available the services of extent required by law, disseminated to the current employees of Rodeo, Inc. and to preserve the current relationships stockholders of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceAcquiror.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the The Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between as soon as practicable following the date of this Agreement Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") for the purpose of obtaining the Company Stockholder Approval and shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger and the Closing, directly or indirectly do, or propose to do, any other transactions contemplated hereby. Without limiting the generality of the followingforegoing but subject to its rights pursuant to Section 4.2 and Section 7.1(f), without the prior written consent Company agrees that its obligations pursuant to the first sentence of Buyer, which consent this Section 5.1(b) shall not be unreasonably withheld affected by the commencement, public proposal, public disclosure or delayed:communication to the Company of any Company Takeover Proposal.
(ic) amendAcquiror shall, propose to amendas soon as practicable following the date of this Agreement, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issueduly call, sell, transfer, pledge, dispose give notice of, grantconvene and hold a meeting of its stockholders (the "Acquiror Stockholders Meeting") for the purposes of obtaining the Acquiror Stockholder Approval and the change of Acquiror's name to "▇▇▇▇▇▇ Rubbermaid Inc." and shall, encumberthrough its Board of Directors, amend recommend to its stockholders the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) approval of the Company or any Company Subsidiary issuance of any class, or any options, warrants, convertible securities or other rights of any kind Acquiror Common Stock to acquire any Units, be issued pursuant to this Agreement. Without limiting the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) generality of the Company or any Company Subsidiaryforegoing but subject to its rights pursuant to Section 4.3 and Section 7.1(d), other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions Acquiror agrees that its obligations pursuant to the terms first sentence of this Section 5.1(c) shall not be affected by the Company Partnership Agreement;commencement, public proposal, public disclosure or communication to Acquiror of any Acquiror Takeover Proposal.
(ivd) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company Acquiror and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree will use all reasonable efforts to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by hold the Company or (iii) ancillary to Stockholders Meeting and the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, Acquiror Stockholders 45 Meeting on the one hand, same date and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to as soon as practicable after the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoinghereof.
Appears in 1 contract
Sources: Merger Agreement (Newell Co)
Additional Agreements. SECTION 5.01 Conduct a. Preparation of Business Prior to Form S-4 and the Closing.
(a) Parent and Rodeo, Inc. covenant and agree that, between Proxy Statement; Stockholders' ------------------------------------------------------------- Meeting; Charter Amendment. Promptly following the date of this Agreement -------------------------- Agreement, the Company shall prepare and file with the SEC the Proxy Statement and Acquiror shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Acquiror shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Acquiror shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or consenting to service of process in any jurisdiction in which it has not previously so consented in any action other than one arising out of the offering of the Media Stock and the time Series D Preferred Stock in such jurisdiction) required to be taken to qualify the Media Stock and Series D Preferred Stock to be issued in the Merger under any applicable state securities or "blue sky" laws prior to the Effective Time, and the Company shall furnish all information concerning the Company and the holders of the Closing, except Company Capital Stock as set forth may be reasonably requested in Section 5.01 connection with any such action.
i. None of the Disclosure Letter information supplied or as contemplated to be supplied by any the Company, on the one hand, or Acquiror, on the other provision of this Agreementhand, unless the Buyer shall otherwise consent for inclusion or incorporation by reference in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses Form S-4 will, at the time the Form S-4 is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the Company and the Company Subsidiaries shall be conducted only instatements therein not misleading, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
or (ii) the Company and Proxy Statement will, at the Company Subsidiaries shall use reasonable best efforts date it is first mailed to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships stockholders of the Company or at the time of each Stockholders' Meeting (as defined in Section 7.1(d)), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall Form S-4 will comply as to form in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 requirements of the Disclosure LetterExchange Act or the Securities Act, Parent and Rodeoas the case may be. Notwithstanding the foregoing, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or no representation is made by the Company Partnership Agreement with respect to statements made or similar organizational documents;
incorporated by reference therein based on information supplied in writing by Acquiror specifically for inclusion or incorporation by reference in the Proxy Statement and (ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend no representation is made by Acquiror with respect to statements made or incorporated by reference therein based on information supplied in writing by the terms of, Company specifically for inclusion or authorize incorporation by reference in the issuance, sale, pledge, disposition, grant or Encumbrance Form S-4.
ii. The Company and Acquiror shall cooperate with each other and provide to each other all information necessary in order to prepare the Proxy Statement and the Form S-4. The Company and Acquiror shall notify each other promptly of the receipt of any Units, comments from the Incentive Distribution Rights, SEC or its staff and of any requests by the GP Interest SEC or any its staff for amendments or supplements to the Form S-4 or the Proxy Statement or for additional information and shall supply the other ownership interests (including without limitation general and limited partnership interests) parties with copies of all correspondence between the Company or any Company Subsidiary of any classits representatives, or any options, warrants, convertible securities Acquiror or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or propertiesrepresentatives, other than transactions that are in as the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiarycase may be, on the one hand, and any of their respective officers, directors, unitholders, owners the SEC or Affiliatesits staff, on the other hand, which if entered into with respect thereto. The Company and Acquiror shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. If at any time prior to the date hereof would be required Effective Time there shall occur (i) any event with respect to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any of its Subsidiaries, or with respect to other information supplied by the Company Subsidiary for inclusion in the Proxy Statement or (ii) any event with respect to Acquiror, or with respect to information supplied by Acquiror for inclusion in the Form S-4, in either case which event is required to be described in an amendment of, or a supplement to, the Proxy Statement or Form S-4, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of the Company. Acquiror shall notify the Company promptly upon
(i) the declaration by the SEC of the effectiveness of the Form S-4, (ii) the issuance or threatened issuance of any stop order or other than order preventing or suspending the use of any prospectus relating to the Form S-4, (iii) any suspension or threatened suspension of the use of any prospectus relating to the Form S-4 in any state, (iv) any proceedings commenced or threatened to be commenced by the SEC or any state securities commission that might result in the issuance of a stop order or other order or suspension of use or (v) any request by the SEC to supplement or amend any prospectus relating to the Form S-4 after the effectiveness thereof. Acquiror and, to the extent applicable, the Company, shall use its reasonable best efforts to prevent or promptly remove any stop order or other order preventing or suspending the use of any prospectus relating to the Form S-4 and to comply with any such request by the SEC or any state securities commission to amend or supplement the Form S-4 or the prospectus relating thereto.
iii. The Company shall, as contemplated by promptly as practicable, duly call, give notice of, convene and hold a meeting of its stockholders (the "Initial Stockholders' Meeting") for the purpose of obtaining the Stockholder Approvals. The Company shall use its reasonable best efforts to hold such meeting as soon as practicable. In the event the Charter Amendment is not approved at the Initial Stockholders' Meeting, the Company shall, as promptly as practicable following the date of the Initial Stockholders' Meeting, duly call, give notice of, convene and hold another meeting of its stockholders (the "Additional Stockholders' Meeting" and, together with the Initial Stockholders' Meeting, collectively, the "Stockholders' Meetings" and individually, a "Stockholders' Meeting") for the purpose of obtaining the Stockholder Approvals. The Company shall, as promptly as practicable after the date of the Initial Stockholders' Meeting, hold the Additional Stockholders' Meeting. Subject to the fiduciary duties of the Board of Directors of the Company under Applicable Laws and to Section 9.1(g), the Company shall, through the Board of Directors, recommend to its stockholders adoption of this Agreement; or
(xx) enter into any contract, agreementthe Charter Amendment and the other transactions contemplated hereby and shall use its best efforts to solicit from stockholders proxies in favor of adoption of this Agreement and the Charter Amendment and to take all other action necessary to secure the Stockholder Approvals at the Initial Stockholders' Meeting or the Additional Stockholders' Meeting, commitment or arrangement to do any as the case may be. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first and third sentences of this Section 7.1(d) shall not be altered by the commencement, public proposal or communication to the Company of any Acquisition Proposal (as defined in Section 7.10).
iv. Subject to receipt of the Stockholder Approvals, the Company shall take all actions necessary to cause the Charter Amendment to be executed, acknowledged and filed and to become effective no later than immediately prior to the Effective Time in accordance with the DGCL as soon as practicable after the approval thereof at a Stockholders' Meeting.
v. The Company shall make stock transfer records relating to the Company available to Acquiror to the extent reasonably necessary to effectuate the intent of this Agreement.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 5.1. Preparation of Business Prior to Form S-4 and the ClosingProxy Statement; Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between Promptly following the date of this Agreement, Company and Purchaser shall prepare and Company shall file with the SEC the Proxy Statement, and Purchaser shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Company and Purchaser shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to its stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Purchaser shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities law in connection with the issuance of Purchaser Common Stock in connection with the Merger, and Company shall furnish all information concerning Company and the holders of Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Option Plans as may be reasonably required in connection with any such action. Each of Purchaser and Company shall furnish all information concerning itself to the other as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the Form S-4 and the preparation, filing and distribution of the Proxy Statement. Company, Purchaser and Merger Sub each agree to correct any information provided by it for use in the Form S-4 or the Proxy Statement that shall have become false or misleading.
(b) Company, acting through its Board of Directors, shall, subject to and in accordance with its certificate of incorporation and by-laws, promptly and duly call, give notice of, convene and hold as soon as practicable following the date upon which the Form S-4 becomes effective a meeting of the holders of Company Common Stock (the "Company Stockholders Meeting") for the purpose of voting to approve and adopt this Agreement and the transactions contemplated hereby and an amendment or repeal of the ownership limitations included in its certificate of incorporation so as to permit the consummation of the transactions contemplated hereby (the "Certificate of Incorporation Amendment"), and (i) except as otherwise provided herein, recommend approval and adoption of this Agreement and the time transactions contemplated hereby and the Certificate of Incorporation Amendment by the Closing, except as set forth stockholders of Company and include in Section 5.01 the Proxy Statement such recommendation and (ii) use its reasonable efforts to solicit and obtain such approval. The Board of the Disclosure Letter or as contemplated by any other provision Directors of this Agreement, unless the Buyer shall otherwise consent in writing, which consent Company shall not be unreasonably withheld withhold, withdraw, amend or delayed:
modify in a manner adverse to Purchaser its recommendation referred to in clause (i) the businesses of the Company and the Company Subsidiaries preceding sentence (or announce publicly its intention to do so), except that such Board of Directors shall be conducted only inpermitted to withhold, and the Company and the Company Subsidiaries shall not take any action except inwithdraw, the ordinary course amend or modify its recommendation (or publicly announce its intention to do so) if such Board of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts Directors determines in good faith, after consultation with its outside legal counsel, that its failure to preserve substantially intact their business organizationwithhold, to keep available the services of the current employees of Rodeowithdraw, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company amend or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreementmodify its recommendation is, or as reflected is reasonably likely to be, inconsistent with its fiduciary duties in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant accordance with Delaware law. The parties hereto understand and agree that neither that, notwithstanding the foregoing, a communication by the Board of Directors of Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose Company's stockholders pursuant to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interestsRule 14d-9(f) of the Company or any Company Subsidiary of any classExchange Act, or any options, warrants, convertible securities or other rights similar type of any kind communication to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or stockholders in connection with the transactions described in clause (vi) above;the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a breach of Company's obligations under this Section 5.1(b).
(xviiic) except as provided in Company will cause its transfer agent to make stock transfer records relating to Company available to the extent reasonably necessary to effectuate the intent of this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Rightchoice Managed Care Inc /De)
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to the ClosingForm S-4 and the INS Proxy Statement; INS Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, Lucent and INS shall prepare and INS shall file with the SEC the INS Proxy Statement and Lucent and INS shall prepare and Lucent shall file with the SEC the Form S-4, in which the INS Proxy Statement will be included as a prospectus. Each of INS and Lucent shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. INS will use all reasonable efforts to cause the INS Proxy Statement to be mailed to INS's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Lucent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Lucent Common Stock in the Merger and INS shall furnish all information concerning INS and the time holders of capital stock of INS as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the ClosingINS Proxy Statement. No filing of, except as or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form S-4 will be made by Lucent, or the INS Proxy Statement will be made by INS, without providing the other party a reasonable opportunity to review and comment thereon. Lucent will advise INS, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Lucent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. INS will advise Lucent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the INS Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to INS or Lucent, or any of their respective affiliates, officers or directors, should be discovered by INS or Lucent which should be set forth in Section 5.01 an amendment or supplement to any of the Disclosure Letter Form S-4 or as contemplated by the INS Proxy Statement, so that any other provision of this Agreementsuch documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses light of the Company circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and the Company Subsidiaries an appropriate amendment or supplement describing such information shall be conducted only in, and promptly filed with the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organizationSEC and, to keep available the services extent required by law, disseminated to the stockholders of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceINS.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary INS shall, between as soon as practicable following the date of this Agreement Agreement, establish a record date (which will be as soon as practicable following the date of this Agreement) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "INS Stockholders Meeting") solely for the purpose of obtaining the INS Stockholder Approval. INS shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger and the Closing, directly or indirectly do, or propose to do, any other transactions contemplated hereby. Without limiting the generality of the followingforegoing but subject to its right to terminate this Agreement pursuant to Section 4.02(b), without INS agrees that its obligations pursuant to the prior written consent first sentence of Buyer, which consent this Section 5.01(b) shall not be unreasonably withheld affected by the commencement, public proposal, public disclosure or delayed:
(i) amend, propose communication to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance INS of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingTakeover Proposal.
Appears in 1 contract
Additional Agreements. SECTION Section 5.01 Conduct Preparation of Business Prior to the ClosingForm S-4 and the Company Proxy Statement; Company Stockholders' Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, Parent and the time Company shall jointly prepare and file with the SEC a document or documents that will constitute the Company Proxy Statement and the Form S-4. Each of Parent and the Company shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, including, in the case of the ClosingCompany, except providing all information with respect to the Company to be included in the Form S-4. The Company will use all reasonable efforts to cause the Form S-4 and Company Proxy Statement to be mailed to Company's stockholders, and the Company and Parent will use all reasonable efforts to obtain Company Stockholder Approval and Parent Stockholder Approval, respectively, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and the Company shall furnish all information concerning the Company and the holders of capital stock of the Company as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form S-4 or the Company Proxy Statement will be made by either Parent or the Company, without providing the other a reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction. Each of Parent and the Company shall promptly inform the other of any request by the SEC for amendments or supplements to the Form S-4 or the Company Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information and will, as promptly as practicable, provide to the Company or Parent, as the case may be, copies of all correspondence and filings with the SEC with respect to the Form S-4 or the Company Proxy Statement, as applicable. If at any time prior to the Effective Time any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, should be discovered by Parent or the Company which should be set forth in Section 5.01 an amendment or supplement to any of the Disclosure Letter Form S-4 or as contemplated the Company Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by any other provision law, disseminated to the stockholders of this Agreement, unless the Buyer Company. No amendment or supplement to the information supplied by the Company for inclusion in the Form S-4 shall otherwise consent in writingbe made without the approval of the Company, which consent approval shall not be unreasonably withheld or delayed:
(i. For purposes of Sections 5.01, 3.01(d) and 3.02(f), information concerning or related to the businesses of Company, its Subsidiaries or their respective Affiliates will be deemed to have been provided by the Company and the Company information concerning or related to Parent, its Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts Affiliates will be deemed to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practicehave been provided by Parent.
(b) By way The Company shall, as soon as practicable following the date of amplification and not limitation, except as contemplated by this Agreement, or establish a record date (which shall be as reflected in soon as practicable following the date of this Agreement) for, duly call, give notice of, convene and hold the Company SEC Reports filed prior Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval and shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby. Without limiting the generality of the foregoing but subject to its rights to terminate this Agreement pursuant to Sections 4.02(b) and 7.01, the Company agrees that its obligations pursuant to the date hereof first sentence of this Section 5.01(b) shall not be affected by the commencement, public proposal, public disclosure or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither communication to the Company nor of any Company Subsidiary Takeover Proposal.
(c) Parent shall, between as soon as practicable following the date of this Agreement, take all action necessary in accordance with the DGCL and its Certificate of Incorporation and Bylaws and take all other action necessary to obtain any necessary Parent Stockholder Approval and shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement and the Closing, directly or indirectly do, or propose to do, any transactions contemplated hereby. Without limiting the generality of the followingforegoing but subject to its rights to terminate this Agreement pursuant to Section 7.01, without Parent agrees that its obligations pursuant to the prior written consent first sentence of Buyer, which consent this Section 5.01(c) shall not be unreasonably withheld affected by the commencement, public proposal, public disclosure or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material communication to the Company and the Company Subsidiaries taken as a whole;of any Takeover Proposal.
(viii) except as required by any Material Contract or in the ordinary course Section 5.02 Letters of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current businessAccountants. If requested, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or Company shall use reasonable efforts to become payable cause to be delivered to Parent two letters from the Company's's independent accountants, any Company Subsidiary'sone dated a date within two Business Days before the date on which the Form S-4 shall become effective and one dated a date within two Business Days before the Closing Date, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfactioneach addressed to Parent, in the ordinary course of business, of liabilities reflected or reserved against form and substance reasonably satisfactory to Parent and customary in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or scope and substance for comfort letters delivered by independent public accountants in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior registration statements similar to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingForm S-4.
Appears in 1 contract
Sources: Merger Agreement (Allied Riser Communications Corp)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.01. PREPARATION OF THE FORM S-4 AND THE PROXY STATEMENT STOCKHOLDERS MEETING.
(a) As soon as practicable after execution and delivery of this Agreement, the Company and Parent shall prepare and Rodeothe Company shall file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, Inc. covenant in which the Proxy Statement will be included as a prospectus. The Company and agree thatParent shall each use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will provide financial and other information required by Parent in connection with Parent's filings under the Securities Act of 1933 and the Securities Exchange Act of 1934. The Company will use all reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders and Parent will use all reasonable efforts to cause an appropriate proxy statement to be mailed to Parent's stockholders, between in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities or "blue sky" laws in connection with the issuance of shares of Parent Common Stock in the Merger and the Company shall furnish all information concerning the Company and the holders of Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Plans as may be reasonably requested in connection with any such action.
(b) The Company will, as soon as reasonably practicable following the date of this Agreement, duly call, give notice of; convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") for the purpose of obtaining the Company Stockholder Approval. Without limiting the generality of the foregoing but subject to Section 4.02(b), the Company agrees that its obligations pursuant to the first sentence of this Section 5.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any takeover proposal. The Company will, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement and the time of the Closingtransactions contemplated hereby, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viiiSection 4.02(b);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Homeusa Inc)
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to the ClosingForm S-4 and the INS Proxy --------------------------------------------- Statement; INS Stockholders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the ------------------------------------ date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless Lucent and INS shall prepare and INS shall file with the Buyer SEC the INS Proxy Statement and Lucent and INS shall otherwise consent prepare and Lucent shall file with the SEC the Form S-4, in writing, which consent the INS Proxy Statement will be included as a prospectus. Each of INS and Lucent shall not use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. INS will use all reasonable efforts to cause the INS Proxy Statement to be unreasonably withheld or delayed:
(i) mailed to INS's stockholders as promptly as practicable after the businesses of Form S-4 is declared effective under the Company and the Company Subsidiaries Securities Act. Lucent shall be conducted only in, and the Company and the Company Subsidiaries shall not also take any action except in(other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Lucent Common Stock in the Merger and INS shall furnish all information concerning INS and the holders of capital stock of INS as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the INS Proxy Statement. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the ordinary course Form S-4 will be made by Lucent, or the INS Proxy Statement will be made by INS, without providing the other party a reasonable opportunity to review and comment thereon. Lucent will advise INS, promptly after it receives notice thereof, of business;
(ii) the Company time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Lucent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the Company Subsidiaries SEC for additional information. INS will advise Lucent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the INS Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to INS or Lucent, or any of their respective affiliates, officers or directors, should be discovered by INS or Lucent which should be set forth in an amendment or supplement to any of the Form S-4 or the INS Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall use reasonable best efforts to preserve substantially intact their business organizationpromptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to keep available the services extent required by law, disseminated to the stockholders of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceINS.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary INS shall, between as soon as practicable following the date of this Agreement Agreement, establish a record date (which will be as soon as practicable following the date of this Agreement) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "INS Stockholders Meeting") solely for the purpose of obtaining the INS Stockholder Approval. INS shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger and the Closing, directly or indirectly do, or propose to do, any other transactions contemplated hereby. Without limiting the generality of the followingforegoing but subject to its right to terminate this Agreement pursuant to Section 4.02(b), without INS agrees that its obligations pursuant to the prior written consent first sentence of Buyer, which consent this Section 5.01(b) shall not be unreasonably withheld affected by the commencement, public proposal, public disclosure or delayed:
(i) amend, propose communication to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance INS of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingTakeover Proposal.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing5.1 SHAREHOLDER APPROVAL; PREPARATION AND FILING OF THE S-4 AND PROXY STATEMENT/PROSPECTUS.
(a) The Company will, as soon as practicable following the execution of this Agreement, duly call, give notice of, convene and hold the Shareholder Meeting for the purpose of approving and adopting this Agreement and approving related matters. The Company will, through its Board of Directors, recommend to its shareholders approval of this Agreement, shall not change such recommendation and shall use its best efforts to obtain approval of this Agreement and related matters by its shareholders, except to the extent that the Board of Directors of the Company shall have withdrawn its approval or recommendation of this Agreement or the Merger as permitted by Section 8.2. The Company shall use all reasonable efforts to hold the Shareholder Meeting as soon as practicable after the date upon which the S-4 becomes effective.
(b) Promptly after the date hereof, Parent and Rodeo, Inc. covenant the Company shall prepare and agree that, between the date Company shall file with the SEC the Proxy Statement/Prospectus for use in connection with the solicitation of proxies from the Company's shareholders in favor of the adoption and approval of this Agreement and the time approval of the ClosingMerger at the Shareholder Meeting, except as set forth in Section 5.01 and Parent and the Company shall prepare and Parent shall file with the SEC the S-4 for the offer and sale of the Disclosure Letter Parent Common Stock pursuant to the Merger and in which the Proxy Statement/Prospectus will be included as a prospectus. Each of Parent and the Company shall provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Proxy Statement/Prospectus and the S-4, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Proxy Statement/Prospectus and the S-4. Each of Parent and the Company shall use all commercially reasonable efforts to have the S-4 declared or ordered effective under the Securities Act as contemplated by promptly as practicable after such filing with the SEC. The Company shall use all commercially reasonable efforts to cause the Proxy Statement/Prospectus to be mailed to the Company's shareholders as promptly as practicable after the S-4 is declared or ordered effective under the Securities Act. Parent shall also take any action (other provision than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of this Agreement, unless process) required to be taken under any applicable state securities laws in connection with the Buyer issuance of Parent Common Stock in the Merger and the Company shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of furnish all information concerning the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course holders of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships capital stock of the Company as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the Proxy Statement/Prospectus. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the S-4 will be made by Parent, or with respect to the Proxy Statement/Prospectus will be made by the Company, without providing the other party hereto a reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the S-4 or comments thereon and responses thereto or requests by the SEC for additional information. The Company Subsidiaries with customersshall advise Parent, contractholders promptly after it receives notice thereof, of any request by the SEC for the amendment of the Proxy Statement/Prospectus or comments thereon and other Persons with whom responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to Parent or the Company, or any of their respective affiliates, officers or directors, should be discovered by Parent or the Company which should be set forth in an amendment or supplement to either of the S-4 or the Proxy Statement/Prospectus, so that any Company Subsidiary has significant business relations;
(iii) of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the Company statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party or parties hereto, as applicable, and an appropriate amendment or supplement to the Company Subsidiaries S-4 and/or the Proxy Statement/Prospectus describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the shareholders of the Company. Each of the parties hereto shall cause the Proxy Statement/Prospectus to comply as to form and substance to such party in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under the applicable Law; and
(iv) requirements of the Company Exchange Act, the Securities Act and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 rules of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingNasdaq National Market.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the ClosingSection 6.1 PREPARATION OF FORM S-4 AND THE PROXY STATEMENT; STOCKHOLDER MEETING.
(a) Parent As promptly as practicable after the execution of this Agreement, the Company and RodeoHCPI shall cooperate with each other regarding, Inc. covenant and, prepare and agree thatfile with the SEC, between the Joint Proxy Statement/Prospectus and HCPI shall prepare and file the Registration Statement, provided that HCPI may delay the filing of the Registration Statement until approval of the Joint Proxy Statement/Prospectus by the SEC. The Company and HCPI will cause the Joint Proxy Statement/Prospectus and the Registration Statement to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations thereunder. Each of HCPI and the Company shall use all reasonable efforts to have or cause the Joint Proxy Statement/Prospectus to be cleared by the SEC and to cause the Registration Statement to become effective as promptly as practicable. Without limiting the generality of the foregoing, each of the Company and HCPI shall cause its respective Representatives to fully cooperate with the other Party and its respective Representatives in the preparation of the Joint Proxy Statement/Prospectus and the Registration Statement, and shall, upon request, furnish the other Party with all information concerning it and its Affiliates, as the other as may be reasonably necessary or advisable in connection with the preparation of the Joint Proxy Statement/Prospectus and the Registration Statement. The Company hereby agrees that the recommendations of the Company Board described in Section 3.20 with respect to the transactions contemplated hereby (subject to the right of the Company Board to withdraw, amend or modify such recommendation in accordance with Section 6.3) may be included in the Registration Statement and the Joint Proxy Statement/Prospectus. HCPI hereby agrees that the recommendation of HCPI Board described in Section 4.20 may be included in the Registration Statement and the Joint Proxy Statement/Prospectus. HCPI shall use its commercially reasonable best efforts to take all actions required under any applicable federal or state securities or Blue Sky Laws in connection with the issuance of shares of HCPI Common Stock pursuant to the Merger and will pay all filing fees incident thereto. As promptly as practicable after the Registration Statement becomes effective, the Company and HCPI shall cause the Joint Proxy Statement/Prospectus to be mailed to their respective stockholders.
(b) The Company and HCPI each agrees that none of the information supplied by it or its Subsidiaries to be included or incorporated by reference in the Joint Proxy Statement/Prospectus or any amendment thereof or supplement thereto, will, on the date of this Agreement the mailing of the Joint Proxy Statement/Prospectus or any amendment or supplement thereto, and at the time of the ClosingCompany Stockholder Meeting and the HCPI Stockholder Meeting, except as set forth contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in Section 5.01 order to make the statements therein, in light of the Disclosure Letter circumstances under which they are made, not misleading. The Company and HCPI each agrees that none of the information supplied by it or as contemplated its Subsidiaries to be included or incorporated by reference in the Registration Statement will, at the time the Registration Statement becomes effective under the Securities Act, contain any other provision untrue statement of this Agreementa material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, unless in light of the Buyer shall otherwise consent in writingcircumstances under which they are made, which consent shall not be unreasonably withheld or delayed:misleading.
(c) Without limiting the generality of the foregoing, prior to the Effective Time (i) the businesses of the Company and HCPI shall notify each other as promptly as practicable upon becoming aware of any event or circumstance which should be described in an amendment of, or supplement to, the Company Subsidiaries shall be conducted only inJoint Proxy Statement/Prospectus or the Registration Statement, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and HCPI shall each notify the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available other as promptly as practicable after the services receipt by it of any written or oral comments of the current employees SEC on, or of Rodeoany written or oral request by the SEC for amendments or supplements to, Inc. the Joint Proxy Statement/Prospectus or the Registration Statement, and to preserve shall promptly supply the current relationships other with copies of the Company all correspondence between it or any of its Representatives and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Unitsforegoing filings.
(d) The Company and HCPI shall each take all action necessary to duly call the Company Stockholders Meeting and the HCPI Stockholders Meeting, respectively, each to be held as promptly as practicable for the Incentive Distribution Rights, purpose of voting upon the GP Interest or any other ownership interests, except for (A) dividends approval of this Agreement and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant the Merger. Subject to the terms right of the Company Partnership Agreement;
(iv) other than Board to withdraw, amend or modify such recommendation in the case of any direct or indirect wholly-owned Company Subsidiaryaccordance with Section 6.3, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests each of the Company or any Company Subsidiary in respect ofand HCPI shall, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoing.through
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 5.01. Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; Target Stockholders Meeting; Parent Stock holders Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, Parent and Target shall prepare and file with the SEC the Proxy Statement and Parent and Target shall prepare and Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Target and Parent shall use all reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Parent and Target will use all reasonable efforts to cause the Proxy Statement to be mailed to Parent's and Target's stockholders, respectively, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and Target shall furnish all information concerning Target and the time holders of capital stock of Target as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the ClosingProxy Statement. No filing of, except as or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form S-4 will be made by Parent, or the Proxy Statement will be made by Target or Parent, without providing the other party a reasonable opportunity to review and comment thereon. Parent will advise Target, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. Target or Parent will advise the other party, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to Target or Parent, or any of their respective affiliates, officers or directors, should be discovered by Target or Parent which should be set forth in Section 5.01 an amendment or supplement to any of the Disclosure Letter Form S-4 or as contemplated by the Proxy Statement, so that any other provision of this Agreementsuch documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses light of the Company circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and the Company Subsidiaries an appro priate amendment or supplement describing such information shall be conducted only in, and promptly filed with the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organizationSEC and, to keep available the services extent required by law, disseminated to the stockholders of the current employees of Rodeo, Inc. and to preserve the current relationships of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceTarget.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary Target shall, between as soon as practicable following the date of this Agreement Agreement, establish a record date (which will be as soon as practicable following the date of this Agreement) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Target Stockholders Meeting") solely for the purpose of obtaining the Target Stockholder Approval. Subject to Section 4.02(b)(i), Target shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger and the Closing, directly or indirectly do, or propose to do, any other transactions contemplated hereby. Without limiting the generality of the followingforegoing, without Target agrees that its obligations pursuant to the prior written consent first sentence of Buyer, which consent this Section 5.01(b) shall not be unreasonably withheld or delayed:
affected by (i) amendthe commencement, propose public proposal, public disclosure or communication to amend, Target of any Takeover Proposal or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issuethe withdrawal or modification by the Board of Directors of Target or any committee thereof of such Board of Directors' or such committee's approval or recommendation of the Merger or this Agreement.
(c) Parent shall, sellas soon as practicable following the date of this Agreement, transferestablish a record date (which will be as soon as practicable following the date of this Agreement) for, pledgeduly call, dispose give notice of, grant, encumber, amend convene and hold a meeting of its stockholders (the terms of, or authorize "Parent Stockholders Meeting") for the issuance, sale, pledge, disposition, grant or Encumbrance purpose of any Units, obtaining the Incentive Distribution Rights, Parent Stockholder Approval. Subject to the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) first sentence of Section 5.01(b);
(iii) declare4.03, set asideParent shall, make or pay any dividend or other distribution payable in cashthrough its Board of Directors, stock, property or otherwise, with respect recommend to any its stockholders the approval of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests shares of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or Parent Common Stock in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between Merger. Without limiting the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any generality of the foregoing, Parent agrees that its obligations pursuant to the first sentence of this Section 5.01(c) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to Parent of any acquisition proposal involving Parent or any of its subsidiaries or (ii) the withdrawal or modification by the Board of Directors of Parent or any committee thereof of such Board of Directors' or such committee's approval or recommendation of the Merger or this Agreement.
Appears in 1 contract
Sources: Merger Agreement (24/7 Media Inc)
Additional Agreements. SECTION 5.01 Conduct 6.01. Preparation of Business Prior to the ClosingForm S-4 and the Proxy Statement; Stockholders Meetings.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company and Parent shall otherwise consent prepare and file with the SEC the Proxy Statement in writingpreliminary form and Parent shall prepare and file with the SEC the Form S-4, in which consent shall not the Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus, and each of the Company and Parent shall use best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Each of the Company Subsidiaries and Parent shall use best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use best efforts to cause the Proxy Statement to be conducted only inmailed to the Company's shareholders, and Parent shall use best efforts to cause the Proxy Statement to be mailed to Parent's stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in connection with the Merger and under the Company Stock Plans and the Company shall furnish all information concerning the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships holders of the Company Common Stock and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions Common Stock pursuant to the terms Company Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the Company Partnership Agreement;
(iv) other than in the case receipt of any direct comments from the SEC or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other Units with copies of all correspondence between such party or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiaryrepresentatives, on the one hand, and any of their respective officers, directors, unitholders, owners the SEC or Affiliatesits staff, on the other hand, which if entered into with respect to the Proxy Statement, the Form S-4 or the Merger. If at any time prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership receipt of the Company Shareholder Approval or the Parent Stockholder Approval, there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company Subsidiary other than and Parent shall promptly prepare and mail to their respective stockholders such an amendment or supplement.
(b) The Company shall, as contemplated by soon as practicable following the date of this Agreement; or
, duly call, give notice of, convene and hold a meeting of its shareholders (xxthe "Company Shareholders Meeting") enter into any contractfor the purpose of seeking the Company Shareholder Approval. The Company shall, agreementthrough the Company Board, commitment or arrangement recommend to do any its shareholders that they give the Company Shareholder Approval. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 6.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal.
(c) Parent shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Parent Stockholders Meeting") for the purpose of seeking the Parent Stockholder Approval. Parent shall, through the Parent Board, recommend to its stockholders that they give the Parent Stockholder Approval. Without limiting the generality of the foregoing, Parent agrees that its obligations pursuant to the first sentence of this
Section 6.01 (c) shall not be affected by the commencement, public proposal, public disclosure or communication to Parent of any Parent Takeover Proposal.
(d) The Company shall use its best efforts to cause to be delivered to Parent a letter of Deloitte & Touche LLP ("D&T"), the Company's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to Parent, in form and substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Form S-4.
(e) Parent shall use its best efforts to cause to be delivered to the Company a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP ("AA"), Parent's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to the Company, in form and substance reasonably satisfactory to the Company and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Form S-4.
Appears in 1 contract
Additional Agreements. SECTION 5.01 Conduct 7.01 Preparation of Business Prior to Form S-4 and the ClosingProxy Statement; Company Special Meeting and Parent Special Meeting.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement Agreement, the Company and Parent shall prepare and file with the time SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement shall be included as part of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses prospectus. Each of the Company and Parent shall use reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of the Company Subsidiaries and Parent shall use reasonable efforts to cause the Proxy Statement to be conducted only inmailed to the Company's stockholders and, if required, Parent's stockholders, respectively, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action required to be taken under any applicable state securities or "blue sky" laws in connection with the issuance of Parent Common Stock pursuant to the Merger, and the Company shall furnish all information concerning the Company and the holders of the Company Subsidiaries Common Stock and rights to acquire the Company Common Stock pursuant to the Company Employee Stock Plans as may be reasonably requested in connection with any such action.
(b) The Company shall, in accordance with all applicable Laws, and the Articles of Incorporation and By-Laws of the Company, duly call, give notice of, convene and hold a special meeting of its stockholders (the "Company Special Meeting") as promptly as practicable after the date hereof for the purpose of considering and taking action upon this Agreement and such other matters as may be appropriate at the Company Special Meeting. Notwithstanding anything in this Agreement to the contrary, the Company shall not take any action except in, which interferes with the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use reasonable best efforts to preserve substantially intact their business organization, to keep available the services of the current employees of Rodeo, Inc. and to preserve the current relationships convening of the Company Special Meeting or the taking of the stockholders' vote at the meeting. The Board of Directors of the Company will include its recommendation that the stockholders of the Company approve and adopt this Agreement and the Company Subsidiaries transactions contemplated hereby in any proxy or other solicitation materials or communications prepared in connection with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceSpecial Meeting.
(bc) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between as soon as practicable following the date of this Agreement and the ClosingAgreement, directly or indirectly doduly call, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issue, sell, transfer, pledge, dispose give notice of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general convene and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any hold a meeting of its assets or propertiesstockholders (the "Parent Special Meeting") for the purpose of obtaining the Parent Stockholder Approval. Parent shall, other than transactions through its Board of Directors, recommend to its stockholders that are in they give the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or Parent Stockholder Approval unless otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted determined by the terms Board of the Credit Agreements;
(x) enterDirectors of Parent in good faith, after consultation with outside counsel, as necessary in order to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated comply with its fiduciary duties to Parent and its stockholders under applicable law. The Company shall vote or cause to be conducted by the Company or (iii) ancillary to the Company's current business, or commence business operations in voted any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course shares of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee Parent Capital Stock owned of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice record by the Company or any Acquired Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership favor of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoingParent Stockholder Approval.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Amerus Life Holdings Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the ClosingSection 5.1 PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) Parent and Rodeo, Inc. covenant and agree that, between As soon as practicable following the date of this Agreement and the time of the Closing, except as set forth in Section 5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, unless the Buyer Company and Acquiror shall otherwise consent prepare and file with the SEC the Joint Proxy Statement and Acquiror shall prepare and file with the SEC the Form S-4, in writing, which consent shall not the Joint Proxy Statement will be unreasonably withheld or delayed:
(i) the businesses included as a prospectus. Each of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries Acquiror shall use reasonable best efforts to preserve substantially intact have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all reasonable best efforts to cause the Joint Proxy Statement to be mailed to the Company's stockholders, and Acquiror will use all reasonable best efforts to cause the Joint Proxy Statement to be mailed to Acquiror's stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Acquiror shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Acquiror Common Stock in the Merger and the Company shall furnish all information concerning the Company and the holders of the Company Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Acquiror or to the Joint Proxy Statement will be made by Acquiror or the Company without providing the other party the opportunity to review and comment thereon. Acquiror will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Acquiror Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Acquiror, or any of their business organizationrespective affiliates, officers or directors, should be discovered by the Company or Acquiror which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to keep available the services of extent required by law, disseminated to the current employees of Rodeo, Inc. and to preserve the current relationships stockholders of the Company and the Company Subsidiaries with customers, contractholders and other Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practiceAcquiror.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the The Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between as soon as practicable following the date of this Agreement Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") for the purpose of obtaining the Company Stockholder Approval and shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger and the Closing, directly or indirectly do, or propose to do, any other transactions contemplated hereby. Without limiting the generality of the followingforegoing but subject to its rights pursuant to Section 4.2 and Section 7.1(f), without the prior written consent Company agrees that its obligations pursuant to the first sentence of Buyer, which consent this Section 5.1(b) shall not be unreasonably withheld affected by the commencement, public proposal, public disclosure or delayed:communication to the Company of any Company Takeover Proposal.
(ic) amendAcquiror shall, propose to amendas soon as practicable following the date of this Agreement, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) issueduly call, sell, transfer, pledge, dispose give notice of, grantconvene and hold a meeting of its stockholders (the "Acquiror Stockholders Meeting") for the purposes of obtaining the Acquiror Stockholder Approval and the 40 50 change of Acquiror's name to "Newe▇▇ ▇▇▇bermaid Inc." and shall, encumberthrough its Board of Directors, amend recommend to its stockholders the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) approval of the Company or any Company Subsidiary issuance of any class, or any options, warrants, convertible securities or other rights of any kind Acquiror Common Stock to acquire any Units, be issued pursuant to this Agreement. Without limiting the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) generality of the Company or any Company Subsidiaryforegoing but subject to its rights pursuant to Section 4.3 and Section 7.1(d), other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions Acquiror agrees that its obligations pursuant to the terms first sentence of this Section 5.1(c) shall not be affected by the Company Partnership Agreement;commencement, public proposal, public disclosure or communication to Acquiror of any Acquiror Takeover Proposal.
(ivd) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all transactions pursuant to this subsection (vi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company Acquiror and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree will use all reasonable efforts to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be conducted by hold the Company or (iii) ancillary to Stockholders Meeting and the Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, Acquiror Stockholders Meeting on the one hand, same date and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to as soon as practicable after the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any Company Subsidiary other than as contemplated by this Agreement; or
(xx) enter into any contract, agreement, commitment or arrangement to do any of the foregoinghereof.
Appears in 1 contract
Sources: Merger Agreement (Rubbermaid Inc)