Common use of Business in Ordinary Course Clause in Contracts

Business in Ordinary Course. From the Agreement Date to the Closing Date, neither the Seller nor the Purchaser shall do any of the following except as expressly contemplated by this Agreement or except with the prior written consent of the other Party, which consent shall not unreasonably be withheld or delayed: (a) declare or pay any distributions on or make other distributions in respect of any of its shares or membership units; (b) split, combine or reclassify any of its shares or membership units or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, its shares or its membership units; (c) repurchase, redeem or otherwise acquire any shares or its membership units or any securities convertible into or exercisable for any shares of its shares or membership units; or (d) effect any reorganization or recapitalization; (b) issue, pledge, dispose of or encumber, deliver or sell, or authorize or propose the issuance, disposition, encumbrance, pledge, delivery or sale of, any shares of its shares or membership units of any class, or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such shares, or enter into any agreement with respect to any of the foregoing; (c) except to the extent required to comply with their respective obligations hereunder or required by law, to amend or propose to amend its organizational documents; (d) make any change in the company or the operations of the business; (e) make any capital expenditure or enter into any contract or commitment therefore, other than capital expenditures or commitments for capital expenditures incurred in the ordinary course of business; (f) enter into any contract, agreement, undertaking or commitment, except in the ordinary course of business; (g) enter into any contract for the purchase or lease of real property or any option to extend a lease; (h) sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any encumbrance on, any of the Assets, other than minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business; (i) cancel any debts owed to or claims held (including the settlement of any claims or litigation) other than in the ordinary course of business; (j) create, incur, assume, or guarantee or agree to create, incur, assume or guarantee, any indebtedness for borrowed money or enter into, any capitalized lease obligations; (k) delay or accelerate payment of any account payable or other liability of the business beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business; (l) make, or agree to make, any payment of cash or distribution of assets to any affiliates; (m) establish, adopt or enter into any new employee benefit plans or agreements (including pension, profit sharing, bonus, incentive compensation, director and officer compensation, severance, medical, disability, life or other insurance plans, and employment agreements) or amend or modify any existing employee benefit plans, or extend coverage of the employee benefit plans, except for extensions of such plans in the ordinary course of business or and as required by applicable law; (n) except in the ordinary course of business or as required under the terms of any employment agreements validly existing on the date hereof, (a) increase the compensation payable or to become payable to any employees or independent contractors or otherwise amend any agreement with any employee or independent contract; or (b) take any action with respect to the grant of any severance or termination pay, stay bonus or other incentive arrangement (other than as required by applicable law or as required pursuant to employee benefit plans and policies in effect on the date of this Agreement), nor shall the party amend any such agreement, plan or policy; (o) issue or sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of other persons; (p) make any loans, advances or capital contributions to, or investments in, any other person; (q) permit any insurance policy naming it as a beneficiary, owner or loss payable payee to be canceled or terminated, except in the ordinary course of business; (r) enter into any Contract that, if such agreement or contract were in effect on the date hereof, would constitute a material Contract; (s) make or revoke any election relating to taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to taxes, or except as may be required by applicable law, make any change to any of its methods of accounting or methods of reporting income or deductions for tax purposes from those employed in the preparation of its tax return most recently filed prior to the date of this Agreement; (t) fail to duly and timely file or cause to be filed all tax returns required to be filed with any tax authority or fail to promptly pay or cause to be paid when due all taxes, including interest and penalties levied or assessed; (u) take any action that is reasonably likely to result in any of the conditions contemplated herein to not be satisfied; (v) make any material change in the accounting policies applied in the preparation of the Financial Statements; (w) make any adverse modification to any Contract; (x) enter into any compromise or settlement of any litigation, proceeding or governmental investigation relating to its assets or business; (y) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets material to such companies taken as a whole, except for the purchase of assets from suppliers or vendors in the ordinary course of business; or

Business in Ordinary Course. From Gemini, GBI, EPi and EPi Sub will each carry on their businesses and affairs as heretofore carried on, and except in connection with the Agreement Date to the Closing Date, neither the Seller nor the Purchaser shall do any of the following except Other Reorganization Transactions or as expressly contemplated by this Agreement or in the usual and ordinary course of their businesses in accordance with past practices, Gemini, GBI, EPi and EPi Sub will not order, purchase or lease any products, inventory, equipment, personal property or other items, or dispose of any of their respective assets or leased properties, or prepay any of their respective material obligations, incur any liabilities or obligations, hire or discharge any employee or officer or, without limitation by specific enumeration of the foregoing, enter into any other transaction. Without limiting the generality of the foregoing, Gemini, GBI, EPi and EPi Sub each agrees that except in connection with the prior Other Reorganization Transactions or as contemplated by this Agreement, or without the written consent of the other Partyparties, which consent shall not be unreasonably be withheld or delayedwithheld, it will not: (ai) declare create or pay suffer to exist any distributions on liens or make other distributions in respect of any of its shares or membership units; (b) split, combine or reclassify any of its shares or membership units or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, its shares or its membership units; (c) repurchase, redeem or otherwise acquire any shares or its membership units or any securities convertible into or exercisable for any shares of its shares or membership units; or (d) effect any reorganization or recapitalization; (b) issue, pledge, dispose of or encumber, deliver or sell, or authorize or propose the issuance, disposition, encumbrance, pledge, delivery or sale of, any shares of its shares or membership units of any class, or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such shares, or enter into any agreement encumbrances with respect to any of its assets or properties which will not be discharged prior to the foregoingClosing Date; (cii) except to the extent required to comply with their respective obligations hereunder or required by law, to amend or propose to amend its organizational documentsincur any indebtedness for borrowed money; (diii) make sell or transfer any change material assets or properties (including, without limitation, sales and transfers to any of its stockholders), except for sales of inventories of products made in the company or the operations ordinary course of the business; (eiv) make any capital expenditure acquire or enter into any contract agreement or commitment therefore, other than capital expenditures understanding (oral or commitments for capital expenditures incurred in written) to acquire the ordinary course of business; (f) enter into any contract, agreement, undertaking stock or commitment, except in the ordinary course of business; (g) enter into any contract for the purchase or lease of real property or any option to extend a lease; (h) sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any encumbrance on, any of the Assets, other than minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business; (i) cancel any debts owed to or claims held (including the settlement assets of any claims or litigation) other than in the ordinary course of business; (j) create, incur, assume, or guarantee or agree to create, incur, assume or guarantee, any indebtedness for borrowed money or enter into, any capitalized lease obligations; (k) delay or accelerate payment of any account payable or other liability of the business beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business; (l) make, or agree to make, any payment of cash or distribution of assets to any affiliates; (m) establish, adopt or enter into any new employee benefit plans or agreements (including pension, profit sharing, bonus, incentive compensation, director and officer compensation, severance, medical, disability, life or other insurance plans, and employment agreements) or amend or modify any existing employee benefit plans, or extend coverage of the employee benefit plans, except for extensions of such plans in the ordinary course of business or and as required by applicable law; (n) except in the ordinary course of business or as required under the terms of any employment agreements validly existing on the date hereof, (a) increase the compensation payable or to become payable to any employees or independent contractors or otherwise amend any agreement with any employee or independent contract; or (b) take any action with respect to the grant of any severance or termination pay, stay bonus or other incentive arrangement (other than as required by applicable law or as required pursuant to employee benefit plans and policies in effect on the date of this Agreement), nor shall the party amend any such agreement, plan or policy; (o) issue or sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of other persons; (p) make any loans, advances or capital contributions to, or investments in, any other person; (q) permit any insurance policy naming it as a beneficiary, owner or loss payable payee to be canceled or terminated, except in the ordinary course of business; (r) enter into any Contract that, if such agreement or contract were in effect on the date hereof, would constitute a material Contract; (s) make or revoke any election relating to taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to taxes, or except as may be required by applicable law, make any change to any of its methods of accounting or methods of reporting income or deductions for tax purposes from those employed in the preparation of its tax return most recently filed prior to the date of this Agreement; (t) fail to duly and timely file or cause to be filed all tax returns required to be filed with any tax authority or fail to promptly pay or cause to be paid when due all taxes, including interest and penalties levied or assessed; (u) take any action that is reasonably likely to result in any of the conditions contemplated herein to not be satisfiedPerson; (v) make any material change in the accounting policies applied conduct or nature of any aspect of its business, whether in the preparation ordinary course of business or not, or whether or not the Financial Statementschange has or will have a material adverse affect on its business activities, financial condition, or business prospects; (wvi) make waive any adverse modification material rights; (vii) pay any of its stockholders, Stockholder Affiliates, Partners or Partner Affiliates except for wages paid to any Contractstockholder or partner who is also an employee, or be charged by any stockholder, any Stockholder Affiliate, any Partner or any Partner Affiliate for goods sold or services rendered, or be charged by any stockholder, any Stockholder Affiliate, any Partner or any Partner Affiliate for corporate overhead expenses, management fees, legal or accounting fees, capital charges, or similar charges or expenses; (viii) incur or commit to incur any individual capital expenditures in excess of $10,000, or in the aggregate in excess of $25,000; (ix) amend employment contracts or the terms and conditions of employment of any officer, director or employee earning total annual compensation in excess of $50,000, other than normal merit and cost of living increases to employees in accordance with its general prevailing practices existing prior to the date of this Agreement; (x) except for fees paid to or incurred with its accountants and attorneys, pay or incur any management, consulting or other professional fees; (xi) hire any employee who will have an annual salary in excess of $35,000; (xii) make any change in its Certificate of Incorporation ; or Articles of Incorporation; By-laws or Partnership Documents; (xiii) merge or consolidate or agree to merge or consolidate with or into any Person; (xiv) make or permit to be made any distribution to any of its stockholders or partners with respect to stock or partnership interests or other of its securities, if any; or (xv) enter into any compromise or settlement transaction other than in the usual and ordinary course of any litigation, proceeding or governmental investigation relating to its assets or business; (yxvi) acquire make any material Tax elections or agree to acquire, by merging settle or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by compromise any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets material to such companies taken as a whole, except for the purchase of assets from suppliers or vendors in the ordinary course of businessTax liability; or

Business in Ordinary Course. From The business of the Agreement Date Company shall be conducted solely in the ordinary course in accordance with past practice. Sellers shall use their best efforts to maintain and service the Company's business, and to keep available the services of present employees and agents and maintain existing business relationships, insurance and licenses. Without limiting the generality of the foregoing, prior to the Closing Date, neither the Seller nor Company shall not, without the Purchaser shall do any of the following except as expressly contemplated by this Agreement or except with the prior written consent of the other Party, which consent shall not unreasonably be withheld or delayedAcquiror: (a) declare issue, sell, deliver or pay any distributions on agree or make other distributions in respect commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) or authorize the issuance, sale or delivery of any stock of its shares any class or membership units; any other securities or any rights, warrants or options to acquire any such stock or other securities (except pursuant to the conversion or exercise of convertible securities or Options outstanding on the date hereof), or amend any of the terms of any such convertible securities or Options; (b) split, combine or reclassify any shares of its shares capital stock; declare, set aside or membership units pay any dividend or issue other distribution (whether in cash, stock or authorize property or propose the issuance of any other securities combination thereof) in respect ofof its capital stock; or redeem, in lieu of or in substitution for, its shares or its membership units; (c) repurchase, redeem purchase or otherwise acquire any shares or its membership units or any securities convertible into or exercisable for any shares of its shares or membership units; or (d) effect any reorganization or recapitalization; (b) issue, pledge, dispose of or encumber, deliver or sell, or authorize or propose the issuance, disposition, encumbrance, pledge, delivery or sale of, any shares of its shares or membership units of any class, or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such shares, or enter into any agreement with respect to any of the foregoingCompany; (c) except to create, incur or assume any debt for borrowed money or any obligations in respect of capital leases not currently outstanding, assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the extent required to comply with their respective obligations hereunder of any other person, or required by law, to amend or propose to amend its organizational documents; (d) make any change in the company or the operations of the business; loans, advances (e) make any capital expenditure or enter into any contract or commitment therefore, other than capital expenditures or commitments to employees for capital expenditures travel expenses incurred in the ordinary course of business; (f) enter into any contract, agreement, undertaking or commitment, except in the ordinary course of business; (g) enter into any contract for the purchase or lease of real property or any option to extend a lease; (h) sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any encumbrance on, any of the Assets, other than minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business; (i) cancel any debts owed to or claims held (including the settlement of any claims or litigation) other than in the ordinary course of business; (j) create, incur, assume, or guarantee or agree to create, incur, assume or guarantee, any indebtedness for borrowed money or enter into, any capitalized lease obligations; (k) delay or accelerate payment of any account payable or other liability of the business beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business; (l) make, or agree to make, any payment of cash or distribution of assets to any affiliates; (m) establish, adopt or enter into any new employee benefit plans or agreements (including pension, profit sharing, bonus, incentive compensation, director and officer compensation, severance, medical, disability, life or other insurance plans, and employment agreements) or amend or modify any existing employee benefit plans, or extend coverage of the employee benefit plans, except for extensions of such plans in the ordinary course of business or and as required by applicable law; (n) except in the ordinary course of business or as required under the terms of any employment agreements validly existing on the date hereof, (a) increase the compensation payable or to become payable to any employees or independent contractors or otherwise amend any agreement with any employee or independent contract; or (b) take any action with respect to the grant of any severance or termination pay, stay bonus or other incentive arrangement (other than as required by applicable law or as required pursuant to employee benefit plans and policies in effect on the date of this Agreement), nor shall the party amend any such agreement, plan or policy; (o) issue or sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of other persons; (p) make any loans, advances or capital contributions to, or investments in, any other personperson or entity; (qd) permit enter into, adopt or amend any insurance policy naming it as a beneficiaryemployee benefit plan or any employment or severance agreement or arrangement of the type described in Section 2.15.3 or increase in any manner the compensation or fringe benefits of its directors, owner officers or loss payable payee to be canceled or terminated, employees (except for hiring in the ordinary course of business; (r) enter into business and ordinary course periodic employee review and compensation adjustment procedures), generally or individually, or pay any Contract that, if such agreement or contract were benefit not required by the terms in effect on the date hereof, would constitute a material Contracthereof of any existing employee benefit plan; (se) make acquire, sell, lease, encumber or revoke dispose of any election relating to taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to taxes, or except as may be required by applicable law, make any change to any of its methods of accounting or methods of reporting income or deductions for tax purposes from those employed in the preparation of its tax return most recently filed prior shares (other than to the date extent provided herein) of this Agreement; (t) fail to duly and timely file or cause to be filed all tax returns required to be filed with any tax authority or fail to promptly pay or cause to be paid when due all taxes, including interest and penalties levied or assessed; (u) take any action that is reasonably likely to result in any of the conditions contemplated herein to not be satisfied; (v) make any material change in the accounting policies applied in the preparation of the Financial Statements; (w) make any adverse modification to any Contract; (x) enter into any compromise or settlement of any litigation, proceeding or governmental investigation relating to its assets or business; (y) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial other equity interest interests in or a substantial portion securities of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereofthereof or any assets, or otherwise acquire or agree to acquire any assets material to such companies taken as a whole, except for the purchase other than purchases and sales of assets from suppliers or vendors in the ordinary course of business; (f) amend its charter or By-laws; (g) change in any material respect its accounting methods, principles or practices, except insofar as may be required by a generally applicable change in GAAP; (h) discharge or satisfy any security interest or pay any obligation or liability other than in the ordinary course of business, except that the Company may pay the invoices of the Company's legal, accounting and financial advisors in connection with the transactions contemplated by this Agreement up to an aggregate of $37,500; (i) mortgage or pledge any of its property or assets or subject any such assets to any security interest; (j) sell, assign, transfer or license any Business Property Rights, other than in the ordinary course of business; (k) enter into, amend, take or omit to take any action that would constitute a violation of or default under, or waive any rights under, any material contract or agreement; (l) make or commit to make any capital expenditure in excess of $10,000 per item or $100,000 in the aggregate; (m) take any action or fail to take any action permitted by this Agreement with the knowledge that such action or failure to take action would result in (i) any of the representations and warranties of [the Company or] the Stockholders set forth in this Agreement becoming untrue or (ii) any of the conditions to the Closing not being satisfied; (n) take any action that would jeopardize the treatment of the transaction contemplated hereby as a "reorganization" as defined in Section 368(a) of the Code; (o) introduce any new product line or attempt to enter into any new geographic market; (p) hire any new employee without the consent of Acquiror; or (q) agree in writing or otherwise to take any of the foregoing actions.

Business in Ordinary Course. From the Agreement Date to the Closing Date, neither the Seller nor the Purchaser shall do any of the following except as expressly contemplated by this Agreement or except with the prior written consent of the other Party, which consent shall not unreasonably be withheld or delayed: (a) declare or pay any distributions on or make other distributions in respect of any of its shares or membership units; (b) split, combine or reclassify any of its shares or membership units or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, its shares or its membership units; (c) repurchase, redeem or otherwise acquire any shares or its membership units or any securities convertible into or exercisable for any shares of its shares or membership units; or (d) effect any reorganization or recapitalization; (b) issue, pledge, dispose of or encumber, deliver or sell, or authorize or propose the issuance, disposition, encumbrance, pledge, delivery or sale of, any shares of its shares or membership units of any class, or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such shares, or enter into any agreement with respect to any of the foregoing; (c) except to the extent required to comply with their respective obligations hereunder or required by law, to amend or propose to amend its organizational documents; (d) make any change in the company or the operations of the business; (e) make any capital expenditure or enter into any contract or commitment therefore, other than capital expenditures or commitments for capital expenditures incurred in the ordinary course of business; (f) enter into any contract, agreement, undertaking or commitment, except in the ordinary course of business; (g) enter into any contract for the purchase or lease of real property or any option to extend a lease; (h) sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any encumbrance on, any of the Assets, other than minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business; (i) cancel any debts owed to or claims held (including the settlement of any claims or litigation) other than in the ordinary course of business; (j) create, incur, assume, or guarantee or agree to create, incur, assume or guarantee, any indebtedness for borrowed money or enter into, any capitalized lease obligations; (k) delay or accelerate payment of any account payable or other liability of the business beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business; (l) make, or agree to make, any payment of cash or distribution of assets to any affiliates; (m) establish, adopt or enter into any new employee benefit plans or agreements (including pension, profit sharing, bonus, incentive compensation, director and officer compensation, severance, medical, disability, life or other insurance plans, and employment agreements) or amend or modify any existing employee benefit plans, or extend coverage of the employee benefit plans, except for extensions of such plans in the ordinary course of business or and as required by applicable law; (n) except in the ordinary course of business or as required under the terms of any employment agreements validly existing on the date hereof, (a) increase the compensation payable or to become payable to any employees or independent contractors or otherwise amend any agreement with any employee or independent contract; or (b) take any action with respect to the grant of any severance or termination pay, stay bonus or other incentive arrangement (other than as required by applicable law or as required pursuant to employee benefit plans and policies in effect on the date of this Agreement), nor shall the party amend any such agreement, plan or policy; (o) issue or sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of other persons; (p) make any loans, advances or capital contributions to, or investments in, any other person; (q) permit any insurance policy naming it as a beneficiary, owner or loss payable payee to be canceled or terminated, except in the ordinary course of business; (r) enter into any Contract contract that, if such agreement or contract were in effect on the date hereof, would constitute a material Contractcontract; (s) make or revoke any election relating to taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to taxes, or except as may be required by applicable law, make any change to any of its methods of accounting or methods of reporting income or deductions for tax purposes from those employed in the preparation of its tax return most recently filed prior to the date of this Agreement; (t) fail to duly and timely file or cause to be filed all tax returns required to be filed with any tax authority or fail to promptly pay or cause to be paid when due all taxes, including interest and penalties levied or assessed; (u) take any action that is reasonably likely to result in any of the conditions contemplated herein to not be satisfied; (v) make any material change in the accounting policies applied in the preparation of the Financial Statementsadverse modification to any Warranty Right; (w) make any adverse modification to any Contract; (x) enter into any compromise or settlement of any litigation, proceeding or governmental investigation relating to its assets or business; (yx) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets material to such companies taken as a whole, except for the purchase of assets from suppliers or vendors in the ordinary course of business; or