Business Operations Company will provide all necessary equipment, personnel and other appurtenances necessary to conduct its operations. Company will conduct its business operations hereunder in a lawful, orderly and proper manner, considering the nature of such operation, so as not to unreasonably annoy, disturb, endanger or be offensive to others at or near the Premises or elsewhere on the Airport.
Business of Company The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, to engage in any lawful act or activity for which limited liability companies may be formed under the New York Code and to engage in any and all activities necessary or incidental to the foregoing.
Purpose and Business The purpose and nature of the business to be conducted by the Partnership shall be to (a) engage directly in, or enter into or form, hold and dispose of any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any business activity that is approved by the General Partner and that lawfully may be conducted by a limited partnership organized pursuant to the Delaware Act and, in connection therewith, to exercise all of the rights and powers conferred upon the Partnership pursuant to the agreements relating to such business activity, and (b) do anything necessary or appropriate to the foregoing, including the making of capital contributions or loans to a Group Member; provided, however, that the General Partner shall not cause the Partnership to engage, directly or indirectly, in any business activity that the General Partner determines would be reasonably likely to cause the Partnership to be treated as an association taxable as a corporation or otherwise taxable as an entity for federal income tax purposes. To the fullest extent permitted by law, the General Partner shall have no duty or obligation to propose or approve the conduct by the Partnership of any business and may decline to do so free of any fiduciary duty or obligation whatsoever to the Partnership or any Limited Partner and, in declining to so propose or approve, shall not be required to act in good faith or pursuant to any other standard imposed by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity and the General Partner in determining whether to propose or approve the conduct by the Partnership of any business shall be permitted to do so in its sole and absolute discretion.
Conduct of the Business (a) Except as required by applicable Law, Judgment or a Governmental Authority, as expressly contemplated, required or permitted by this Agreement or the Merger Agreement or otherwise undertaken to implement this Agreement, any Ancillary Agreement or the Merger Agreement, or as set forth in Schedule 6.01, during the period from the date of this Agreement until the Closing (or such earlier date on which this Agreement is terminated pursuant to Section 9.01), unless Purchaser otherwise consents in writing (such consent not to be unreasonably withheld, delayed or conditioned), (i) Seller shall, and shall cause the other Asset Seller Entities to, use its and their commercially reasonable efforts to carry on the Business in all material respects in the ordinary course consistent with past practice, and (ii) to the extent consistent with the foregoing, Seller shall, and shall cause the other Asset Seller Entities to, use its and their commercially reasonable efforts to (A) preserve the business organizations of the Business substantially intact and (B) preserve existing relations with key customers and distributors of the Business and with other Persons with whom Seller and the other Asset Seller Entities have significant business relationships with respect to the Business, in each case, consistent with past practice.
(b) Without limiting the generality of the foregoing, except as required by applicable Law, Judgment or a Governmental Authority, as expressly contemplated, required or permitted by this Agreement or the Merger Agreement or as set forth in Schedule 6.01, during the period from the date of this Agreement until the Closing (or such earlier date on which this Agreement is terminated pursuant to Section 9.01), unless Purchaser otherwise consents in writing (such consent not to be unreasonably withheld, delayed or conditioned), Seller shall not, and shall not permit any other Asset Seller Entity to, in each case solely to the extent relating to the Business:
(i) incur any Indebtedness that creates or results in a Lien (other than a Permitted Lien) upon any of the Purchased Assets, except for Indebtedness incurred in the ordinary course of business consistent with past practice that (A) constitutes an Excluded Liability, (B) does not result in a Lien (other than a Permitted Lien) on the Purchased Assets that will survive the Closing, or (C) constitutes a letter of credit, bank guarantee, security or performance bond or similar credit support instrument, overdraft facility or cash management program;
(ii) sell, lease, license or otherwise transfer, directly or indirectly, to any Person, in a single transaction or series of related transactions, any of the Purchased Assets, except (A) ordinary course dispositions of inventory to customers and distributors consistent with past practice, (B) dispositions consistent with past practice of (1) obsolete, surplus or worn out assets or (2) assets that are no longer used or useful in the Business, or (C) transfers among the Asset Seller Entities;
(iii) make any acquisition of, or investment in, any properties, assets, Securities or business for the Business, except for the acquisitions of supplies, inventory, equipment, merchandise or products in the ordinary course of business consistent with past practice;
(iv) grant any Lien (other than a Permitted Lien) on any of the Purchased Assets other than (A) to secure Indebtedness and other obligations permitted under Section 6.01(b)(i), or (B) any such Lien that will not survive the Closing and will not (1) require any Consent to be obtained in connection with the Transactions or (2) delay in any material respect the consummation thereof;
(A) modify, amend or terminate, or waive, in each case in any material respect, any rights or claims under, any Material Contract or any Restricted Contract other than in the ordinary course of business consistent with past practice or (B) enter into any new Contract that (1) would, in the twelve (12)-month period immediately following the entry into such Contract, reasonably be expected to meet the threshold monetary requirement set forth for such type of a Contract in Section 4.11(a)(iii) for the fiscal year ended December 31, 2016, (2) is a Restricted Contract, or (3) contains a change in control or similar provision in favor of the other party or parties thereto that would require a material payment to or would give rise to any material rights of such other party or parties in connection with the consummation of the Transactions (including in combination with any other event or circumstance), other than pursuant to a tender offer process for Contracts with a Governmental Authority in the ordinary course consistent with past practice; or
(vi) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions.
(c) Nothing contained in this Agreement is intended to give Purchaser, directly or indirectly, the right to control or direct the operations of the Business prior to the Closing, and nothing contained in this Agreement is intended to give Purchaser at any time, directly or indirectly, the right to control or direct any Excluded Businesses. Prior to the Closing, each of Purchaser and Seller shall exercise, consistent with the terms and conditions of this Agreement and with applicable Competition Laws, complete control and supervision over its and its Subsidiaries’ respective operations.
The Business The parties acknowledge that the Company is engaged in the development, marketing and sale of certain proprietary technologies, processes and related products in the areas of chemical detection, technical processes, and technical/business services, and that the Company may also from time to time become or may intend to become engaged in other business endeavors (individually and collectively, the "BUSINESS"). The Company shall be deemed to intend to become engaged in a business endeavor if it has devoted or expended any significant resources, either financial or human resources, towards the proposed endeavor, either in planning or implementing the undertaking of such planned endeavor.
Financial and Business Information The Constituent Companies shall deliver to each holder of a Note that is an Institutional Investor:
(a) Quarterly Statements - within 60 days (or such shorter period as is the earlier of (x) five Business Days after the date the Parent Guarantor’s Quarterly Report on Form 10‑Q (the “Form 10‑Q”) is required to be filed with the SEC (without giving effect to any extension permitted by the SEC) and (y) the date by which such financial statements are required to be delivered under any Material Credit Facility or the date on which such corresponding financial statements are delivered under any Material Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each quarterly fiscal period in each fiscal year of the Parent Guarantor (other than the last quarterly fiscal period of each such fiscal year), duplicate copies of,
(1) a consolidated balance sheet of the Parent Guarantor as at the end of such quarter, and
(2) the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows of the Parent Guarantor, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter, setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements and certified by a Senior Financial Officer of the Parent Guarantor as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows in accordance with GAAP, subject to changes resulting from normal year‑end audit adjustments and the absence of footnotes, provided that delivery within the time period specified above of copies of the Parent Guarantor’s Form 10‑Q prepared in compliance with the requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of this Section 7.1(a);
(b) Annual Statements - within 120 days (or such shorter period as is the earlier of (x) 15 days after the date the Parent Guarantor’s Annual Report on Form 10‑K (the “Form 10‑K”) is required to be filed with the SEC (without giving effect to any extension permitted by the SEC) and (y) the date by which such financial statements are required to be delivered under any Material Credit Facility or the date on which such corresponding financial statements are delivered under any Material Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each fiscal year of the Parent Guarantor, duplicate copies of,
(1) consolidated and consolidating balance sheets of the Parent Guarantor as at the end of such year, and
(2) the related consolidated and consolidating statements of income or operations, changes in shareholders’ equity and cash flows of the Parent Guarantor for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon (without a “going concern” or similar qualification or exception and without any qualification or exception as to the scope of the audit on which such opinion is based) of independent public accountants of recognized national standing, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances, provided that the delivery within the time period specified above of the Parent Guarantor’s Form 10‑K for such fiscal year (together with the Parent Guarantor’s annual report to shareholders, if any, prepared pursuant to Rule 14a‑3 under the Exchange Act) prepared in accordance with the requirements therefor and filed with the SEC, shall be deemed to satisfy the requirements of this Section 7.1(b);
Business Landlord acknowledges that it is not the intent of this Section 30 to prohibit Tenant from using the Premises for the Permitted Use. Tenant may operate its business according to prudent industry practices so long as the use or presence of Hazardous Materials is strictly and properly monitored according to all then applicable Environmental Requirements. As a material inducement to Landlord to allow Tenant to use Hazardous Materials in connection with its business, Tenant agrees to deliver to Landlord prior to the Commencement Date a list identifying each type of Hazardous Materials to be brought upon, kept, used, stored, handled, treated, generated on, or released or disposed of from, the Premises and setting forth any and all governmental approvals or permits required in connection with the presence, use, storage, handling, treatment, generation, release or disposal of such Hazardous Materials on or from the Premises (“Hazardous Materials List”). Tenant shall deliver to Landlord an updated Hazardous Materials List at least once a year and shall also deliver an updated list before any new Hazardous Material is brought onto, kept, used, stored, handled, treated, generated on, or released or disposed of from, the Premises. Tenant shall deliver to Landlord true and correct copies of the following documents (the “Haz Mat Documents”) relating to the use, storage, handling, treatment, generation, release or disposal of Hazardous Materials prior to the Commencement Date, or if unavailable at that time, concurrent with the receipt from or submission to a Governmental Authority: permits; approvals; reports and correspondence; storage and management plans, notice of violations of any Legal Requirements; plans relating to the installation of any storage tanks to be installed in or under the Project (provided, said installation of tanks shall only be permitted after Landlord has given Tenant its written consent to do so, which consent may be withheld in Landlord’s sole and absolute discretion); all closure plans or any other documents required by any and all federal, state and local Governmental Authorities for any storage tanks installed in, on or under the Project for the closure of any such tanks; and a Surrender Plan (to the extent surrender in accordance with Section 28 cannot be accomplished in 3 months). Tenant is not required, however, to provide Landlord with any portion(s) of the Haz Mat Documents containing information of a proprietary nature which, in and of themselves, do not contain a reference to any Hazardous Materials or hazardous activities. It is not the intent of this Section to provide Landlord with information which could be detrimental to Tenant’s business should such information become possessed by Tenant’s competitors.
Outside Businesses Subject to the provisions of Section 6.3, any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the activities of the Trust, and the Trust and the Holders of Securities shall have no rights by virtue of this Trust Agreement in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the activities of the Trust, shall not be deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware Trustee or the Property Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates.
Operation of the Business During the period from the date of this Agreement to the Closing Date, the Stockholders shall cause the Company to conduct its operations and the Business in the Ordinary Course of Business and in material compliance with all laws applicable to the Company or any of its properties or assets and, to the extent consistent therewith, use its Reasonable Best Efforts to preserve intact its current business organization, keep its physical assets in good working condition, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, prior to the Closing Date, the Company and the Stockholders shall not and shall cause the Company not to, in each case, without the prior written consent of the Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) and except as otherwise contemplated by this Agreement, incur any funded indebtedness:
(a) issue or sell, or redeem or repurchase, any stock or other securities of the Company or any warrants, options or other rights to acquire any such stock or other securities (except pursuant to the conversion or exercise of outstanding convertible securities, options or warrants outstanding on the date hereof), or amend any of the terms of (including without limitation the vesting of) any such convertible securities or options or warrants;
(b) except as otherwise contemplated under Section 4.4(h), below, split, combine or reclassify any shares of its capital stock; or, except as may be required to enable Stockholders to pay taxes on the Pre-Tax Profits of the Company through the Closing Date, and except as otherwise contemplated under Section 4.4(h), below, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock;
(c) except in connection with the Required Financing (hereinafter described), create, incur, assume or guaranty any indebtedness for borrowed money (including obligations in respect of capital leases) except in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreement; assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person or entity; or make any loans, advances or capital contributions to, or investments in, any other person or entity;
(d) enter into, adopt or amend any Employee Benefit Plan or any employment or severance agreement or arrangement or (except for normal increases in the Ordinary Course of Business for employees who are not Affiliates) increase in any manner the compensation or fringe benefits of, or materially modify the employment terms of, its directors, officers or employees, generally or individually, or pay any bonus or other benefit to its directors, officers or employees;
(e) acquire, sell, lease, license or dispose of any assets or property (including without limitation any shares or other equity interests in or securities of the Company or any corporation, partnership, association or other business organization or division thereof), other than purchases and sales of Inventories and other assets in the Ordinary Course of Business;
(f) except in connection with the Required Financing (hereinafter described), mortgage or pledge any of its property or assets (including without limitation any shares or other equity interests in or securities of the Company or any corporation, partnership, association or other business organization or division thereof), or subject any such property or assets to any Security Interest;
(g) discharge or satisfy any Security Interest or pay any obligation or liability other than in the Ordinary Course of Business;
(h) as at the Closing Date, and after giving effect to the declaration or funding of any dividends or distributions to the Stockholders, whether in cash or in property, (A) the combined stockholders’ equity of both the Company and DiscCo shall be not less than $4,000,000, (B) neither the Company nor DiscCo will have an indebtedness in excess of $100,000, and (C) not less than $500,000 of the combined assets of both the Company and DiscCo will be in the form of cash, cash equivalents or immediately marketable securities which is necessary to cover operating expenses of the Company and DiscCo incurred in the ordinary course of business;
(i) amend the charter, by-laws or other organizational documents of the Company;
(j) change in any material respect its accounting methods, principles or practices, except insofar as may be required by a generally applicable change in GAAP;
(k) enter into, amend, terminate, 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) institute or settle any Legal Proceeding;
(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 set forth in this Agreement becoming untrue in any material respect or (ii) any of the conditions to the Closing set forth in Article V not being satisfied; or
(n) agree in writing or otherwise to take any of the foregoing actions.
Non-Company Business Except with the prior written consent of the Board, Executive will not during the term of Executive’s employment with the Company undertake or engage in any other employment, occupation or business enterprise, other than ones in which Executive is a passive investor. Executive may engage in civic and not-for-profit activities so long as such activities do not materially interfere with the performance of Executive’s duties hereunder.
