Certain Covenants and Agreements. 5.1 Conduct of Business by Target. From the date hereof to the Effective Date, Target will, except as required in connection with the Transaction and the other transactions contemplated by this Agreement and except as otherwise disclosed on the schedules hereto or consented to in writing by the Acquiring Company:
(a) carry on its business in the ordinary and regular course in substantially the same manner as heretofore conducted and not engage in any new line of business, or enter into any material agreement, transaction or activity or make any material commitment except those in the ordinary and regular course of business and not otherwise prohibited under this Section 5.1 with the exceptions of the planned product launch and the continuing bridge financing which will result in the issuance of additional Target Notes and underlying Target Note Warrants;
(b) neither change nor amend its Articles of Incorporation or Bylaws;
(c) not issue or sell shares of capital stock of Target or issue, sell or grant options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issuance or sale of any of the capital stock of Target or rights or obligations convertible into or exchangeable for any shares of the capital stock of Target or make any changes (by split-up, combination, reorganization or otherwise) in the capital structure of Target;
(d) not declare, pay or set aside for payment any dividend or other distribution in respect of the capital stock or other equity securities of Target and not redeem, purchase or otherwise acquire any shares of the capital stock or other securities of Target or rights or obligations convertible into or exchangeable for any shares of the capital stock or other securities of Target or obligations convertible into such, or any options, warrants or other rights to purchase or subscribe to any of the foregoing;
(e) not acquire or enter into any agreement to acquire, by merger, consolidation or purchase of stock or assets, any business or entity;
(f) use its best efforts to preserve intact the corporate existence, goodwill, and business organization of Target, to keep the officers and employees of Target available to Target and to preserve the relationships of Target with suppliers, customers and others having business relations with Target, and preserve, maintain and enforce all of Target's material licenses, permits, and similar rights, except for such instances which would not hav...
Certain Covenants and Agreements. 5.1 Conduct of Business prior to the Closing Date. Seller agrees that, except as expressly set forth in this Agreement or on Schedule 5.1 or approved by Buyer in writing, from the date of this Agreement through, and including, the Closing Date:
(a) The NOARK Group and Seller and its Affiliates, as applicable, shall operate the Business in the ordinary course of business including with respect to the collection of receivables and payment of payables, and Seller, its Affiliates and the NOARK Group, as applicable, will use all reasonable efforts to preserve intact their relationships with their customers, suppliers, distributors, employees and other Persons having commercially beneficial relationships with any member of the NOARK Group in the ordinary course of business;
(b) No change shall be made in the certificate of formation, partnership agreement, limited liability company operating agreement, members’ agreement or any other organizational document of any of the members of the NOARK Group;
(c) No change shall be made in the number or dollar amount of authorized or issued equity interests of the members of the NOARK Group; nor shall any option, warrant, call, right, commitment, conversion right, right of first refusal, or agreement of any character be granted or made by Seller or a member of the NOARK Group relating to the authorized or issued equity interests of any member of the NOARK Group; nor shall a member of the NOARK Group issue, grant or sell any securities or obligations convertible into equity interests in a member of the NOARK Group;
(d) No member of the NOARK Group shall incur any Indebtedness (other than trade payables incurred in the ordinary course of business) or make any loans, advances or capital contributions to, or investments in, any other Person;
(e) No member of the NOARK Group, nor Seller or any of its Affiliates, shall (i) increase the compensation payable or to become payable to any Subject Employee, officer or director thereof except in the ordinary course of business as part of regular annual reviews, or increase any bonus plan or other employee benefit plan, or (ii) commit itself to any additional pension, profit-sharing, bonus, incentive, deferred compensation, equity interest purchase, equity interest option, equity interests appreciation right, severance pay, retirement or other employee benefit plan, agreement or arrangement, or to any material employment or consulting agreement with or for the benefit of any Person, or ...
Certain Covenants and Agreements. (a) In consideration of Employee’s employment hereunder, Employee agrees that during the Employment Term and for a period of one (1) year and such additional periods, if any, during which Employee shall be receiving amounts from the Corporation pursuant to paragraph 5 of this Agreement, or the Termination Agreement, Employee will not directly or indirectly (i) solicit, induce or entice for employment, retention or affiliation, recommend to any corporation, entity or other person the solicitation, inducement or enticement for employment, retention or affiliation of, or employ, retain or affiliate with, any employee, consultant, independent contractor or other person employed or retained by, or affiliated with, the Corporation, or any of its subsidiaries or affiliates, (ii) engage in any activity intended to terminate, disrupt or interfere with the Corporation’s or any of its subsidiary’s or affiliate’s relationship with any customer, supplier, lessor or other person or entity, or (iii) engage or participate in, or have any interest in any corporation, person, or other entity, that engages or participates in any business or activity engaged or participated in by the Corporation on date of termination of the Employment Term. For purposes of this paragraph 6(a), Employee will be deemed directly or indirectly to be engaged or participating in the operation of such a business or activity, or to have an interest in a corporation, or other person or entity, if he is a proprietor, partner, joint venturer, shareholder, director, officer, lender, manager, employee, consultant, advisor or agent, or if he, directly or indirectly (including as a member of a group), controls all or any part thereof; provided, that nothing in this paragraph 6(a) shall prohibit Employee from holding less than two percent (2%) of a class of a corporation’s outstanding securities that are listed on a national securities exchange or traded in the over-the-counter market.
(b) Employee acknowledges that by his employment he will be in a confidential relationship with the Corporation and will have access to confidential information and trade secrets of the Corporation, its subsidiaries and affiliates (collectively, the “Confidential Information”). Confidential Information includes, but is not limited to, customer and client lists, financial information, price lists, marketing and sales strategies and procedures, computer programs, databases and software, supplier, vendor and service information,...
Certain Covenants and Agreements. The Company hereby covenants and agrees that:
(a) without the prior written consent of the Trustee, it shall not vote or consent or take any other action to: (i) amend or terminate any partnership agreement, limited liability company agreement, certificate of incorporation, by-laws or other organizational documents of any Issuer in any way that changes the rights of the Company with respect to any Pledged Equity Interests or adversely affects the validity, perfection or priority of the Trustee's security interest therein, (ii) permit any issuer of any Pledged Equity Interest to issue to any Person other than the Company any additional stock, partnership interests, limited liability company interests or other equity interests of any nature or to issue securities convertible into or granting the right of purchase or exchange for any stock or other equity interest of any nature of such Issuer, (iii) other than as permitted under the Indenture or this Agreement, permit any Issuer to dispose of all or a material portion of its assets, (iv) waive any default under or breach of any terms, in each case which would adversely affect the validity, perfection or priority of the Trustee's security interest hereunder, of any organizational document relating to the issuer of any Pledged Equity Interest or (v) cause any Issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the Uniform Commercial Code) on the date hereof to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the Uniform Commercial Code;
(b) without the prior written consent of the Trustee, it shall not permit any Issuer to merge or consolidate unless all the outstanding capital stock or other equity interests of the surviving or resulting corporation, limited liability company, partnership or other entity is, upon such merger or consolidation, pledged hereunder and no cash, securities or other property is distributed in respect of the outstanding equity interests of any other constituent Person;
(c) in the event that it acquires rights in any Pledged Equity Interests after the date hereof, it shall deliver to the Trustee a completed Pledge Supplement with respect to such Pledged Equity Interests; notwithstanding the foregoing, except in the case of a transaction contemplated by Section 4(k) hereof, the security interest of the Trustee shall attach to all P...
Certain Covenants and Agreements. (a) Conduct of the Company's Business. Seller will, from the date hereof up to and including the Closing Date, cause the Company to (i) conduct business only in the ordinary course; (ii) maintain in full force and effect the insurance policies set forth on Schedule 4(l)(v) (or policies providing substantially the same coverage, copies of which will be made available to Buyer), (iii) take all necessary and prudent action to preserve the assets and properties, wherever located, which are material to the business of the Company; (iv) maintain its books and records in accordance with GAAP and in the manner consistent with past practices and promptly advise Buyer in writing of any adverse change in the condition (financial or otherwise) of the assets, liabilities, earnings or business of the Company; (v) not, without Buyer's prior written consent, engage in any action which would require disclosure under Section 4(g) hereto; (vi) not, without Buyer's prior written consent, make any change in the authorized or outstanding capital stock of the Company or otherwise change its capitalization; and (vii) use its best efforts to preserve the business organization of the Company intact, to continue its operations at its present levels, to keep available to Buyer the services of the Company Personnel and to preserve the goodwill of those suppliers, customers, creditors and others having business relations with the Company; and refrain from any significant organizational or personnel changes with respect thereto. If the Company's cash on hand is in excess of $350,000 at Closing, then immediately prior to Closing, the Company may dividend to Seller an amount equal to the cash and investments held by the Company at Closing in excess $350,000. For the purposes of determining the amount of cash and investments held by the Company at Closing, the cash surrender value of the split-life insurance policies on the life of Seller and Regixx Xxxxx xxxll be deemed investments. The ownership of such split-life insurance policies shall be transfer to Seller and the Company shall have no obligation to maintain or pay premiums on such split life insurance policies.
(b) Access to the Company's Business. From the date hereof until the Closing Date, Seller shall, and shall cause Company Personnel to, afford Buyer and its attorneys, consultants, accountants and authorized representatives (including lenders and equity investors) full access, upon reasonable notice during normal business hour...
Certain Covenants and Agreements. The Developer hereby covenants and agrees throughout the Term of this Agreement:
(1) The Developer will keep and maintain the Property and the Development located thereon, in compliance with all Hazardous Materials Laws, and may not cause or permit the Development or any portion thereof to be a site for the release, use, generation, treatment, manufacture, storage, discharge, disposal or transportation of Hazardous Materials or otherwise permit the presence of Hazardous Materials in, on or under the Development;
(2) The Developer must keep and maintain the Development and each portion thereof in compliance with, and may not cause or permit the Development or any portion thereof to be in violation of, any Hazardous Materials Laws;
(3) Upon receiving actual knowledge of the same the Developer must immediately advise the City in writing of: (a) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Developer or the Development under any applicable Hazardous Materials Laws; (b) any and all claims made or threatened by any third party against the Developer or the Development relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in the foregoing clause (a) and this clause (b) are hereinafter referred to as "Hazardous Materials Claims"); (c) the presence of any Hazardous Materials in, on or under the Development; or (d) the Developer's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Development that could cause the Property or any part of the Property to be subject to any restrictions on the ownership, occupancy, transferability, or use of the Development or the Property under any Hazardous Materials Laws, including without limitation under the provisions of California Health and Safety Code, Sections 25220 et seq., or any regulation adopted to implement those sections. The City has the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorney's fees in connection therewith paid by the Developer.
Certain Covenants and Agreements. Section 4.01.
Certain Covenants and Agreements. Section 6.1. Conduct of Business by the Company. For the period commencing on the date hereof and ending on the Closing Date, the Shareholder will cause the Company and each Subsidiary to, except as expressly required hereby and except as otherwise consented to in advance in writing by the Purchaser:
(a) conduct its businesses only in the Ordinary Course and not engage in any new line of business or enter into any agreement, transaction or activity or make any commitment with respect to the Company or any Subsidiary, except those in the Ordinary Course and not otherwise prohibited under this Section 6.1;
(b) use commercially reasonable efforts to preserve intact the goodwill and business organization of the Company and each Subsidiary, keep the officers and employees of the Company and each Subsidiary available to the Purchaser and preserve the relationships and goodwill of the Company and each Subsidiary with customers, distributors, suppliers, employees and other Persons having business relations with the Company or any Subsidiary;
(c) maintain its existence and good standing in its jurisdiction of organization and in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification;
(d) duly and timely file or cause to be filed all Tax Returns required to be filed with any Governmental Entity and promptly pay or cause to be paid when due all Taxes, assessments and governmental charges, including interest and penalties levied or assessed, unless diligently contested in good faith by appropriate proceedings;
(e) not authorize for issuance, issue, sell, transfer, pledge, encumber, dispose of or deliver any additional shares of its capital stock or securities convertible into or exchangeable for shares of its capital stock, or issue, sell, transfer, pledge, encumber or grant any right, option or other commitment for the issuance of shares of its capital stock, or split, combine or reclassify any shares of its capital stock;
(f) not amend or modify its charter documents or other corporate governance documents;
(g) not declare any dividend, pay or set aside for payment any dividend or other distribution or make any payment to the Shareholder or any of its Affiliates, other than cash sweeps in the Ordinary Course or as permitted hereunder;
(h) not create any subsidiary, acquire any capital stock or other equity securities of any corporation or acquire any equity or ownership interest in any business ...
Certain Covenants and Agreements. Section 3.01. Access; Information 7 Section 3.02. Confidentiality 7 Section 3.03. Conflicting Agreements 9 Section 3.04. Corporate Opportunities 9
Certain Covenants and Agreements. Section 4.01 . Conflicting Agreements 7 Section 4.02 . Depositary Arrangement 7
