M&A Boot Camp booklet 2023 - Flipbook - Page 126
3.4 Legal Proceedings. There is no pending Legal Proceeding and, to the knowledge of Parent and Merger Sub, no Person has threatened to
commence any Legal Proceeding, that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with,
the Merger or any of the other transactions contemplated by this Agreement.
4.
CERTAIN COVENANTS OF THE COMPANY
4.1 Access and Investigation. During the period from the date of this Agreement and continuing until the earlier of the termination of this
Agreement pursuant to Section 8 or the Effective Time (the “Pre-Closing Period”), the Company shall, and shall cause its Representatives to:
(a) provide Parent and Parent’s Representatives with reasonable access during normal business hours to the Company’s Representatives,
personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Company;
and (b) provide Parent and Parent’s Representatives with copies of such existing books, records, Tax Returns, work papers and other documents
and information relating to the Company, and with such additional financial, operating and other data and information regarding the Company, as
Parent may reasonably request; provided, however, that any attorney-client privileged documents or information need only be disclosed pursuant
to reasonable procedures designed to preserve such privilege. During the Pre-Closing Period, Parent and its Representatives will hold any such
information that is confidential to the Company in accordance with the provisions of the Confidentiality Agreement. During the Pre-Closing Period,
Parent may make inquiries of Persons having business relationships with the Company (including suppliers, licensors, distributors and customers)
and the Company shall help facilitate (and shall provide reasonable cooperation to Parent in connection with) such inquiries.
4.2 Operation of the Business of the Company. During the Pre-Closing Period, the Company shall ensure that:
(a) the Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such
business and operations have been conducted prior to the date of this Agreement;
(b) the Company shall use reasonable efforts to preserve intact its current business organization, keep available the services of its
current officers and employees and maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and
other Persons having business relationships with the Company;
(c) the Company shall not cancel any of its respective insurance policies identified in Part 2.17 of the Disclosure Schedule;
(d) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of
capital stock or other securities, nor repurchase, redeem or otherwise reacquire any shares of capital stock or other securities;
(e) the Company shall not sell, issue or authorize the issuance of: (i) any capital stock or other security; (ii) any option or right to
acquire any capital stock (or cash based on the value of capital stock) or other security; or (iii) any instrument convertible into or
exchangeable for any capital stock (or cash based on the value of capital stock) or other security (except that the Company shall be permitted
to issue Company Capital Stock upon the exercise of Company Options or Company Warrants, or upon the conversion of Company
Preferred Stock, in each case outstanding as of the date of this Agreement and in accordance with their terms as in effect on the date of this
Agreement;
36.