Conduct of Business Before the Closing Date. (a) The Company covenants and agrees that, during the period from the date of this Agreement to the earlier of the termination of this Agreement in accordance with its terms and the Effective Time (except as otherwise specifically contemplated by the terms of this Agreement), unless Parent shall otherwise consent in writing (which shall not be unreasonably delayed, withheld or conditioned): (i) the businesses of the Company and its Subsidiaries shall be conducted, in all material respects, in the ordinary course of business and in a manner consistent with past practice and, in all material respects, in compliance with applicable laws, including without limitation the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act, the Exchange Act or the Xxxxxxxx-Xxxxx Act; and (ii) the Company shall use its commercially reasonable efforts to, and shall cause its Subsidiaries to use their commercially reasonable efforts to, continue to maintain and preserve in all material respects, its assets, properties, rights and operations and the business organization and current business relationships of the Company and its Subsidiaries. Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries shall (except as specifically contemplated by the terms of this Agreement or as set forth on Schedule 5.1(a)), between the date of this Agreement and the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, directly or indirectly, do any of the following without the prior written consent of Parent (which shall not be unreasonably delayed, withheld or conditioned other than with respect to clauses (ii), (iii), (iv) or (v) below, with respect to the acquisitions of any businesses):
(i) make any change in any of its organizational documents; issue any additional shares of capital stock (other than upon the exercise of options to purchase shares of Company Common Stock or pursuant to the terms of Company RSU Awards or Company PSU Awards, in each case outstanding on the date hereof), membership interests or partnership interests or other equity securities or grant any option, warrant or right to acquire any capital stock, membership interests or partnership interests or other equity securities or issue any security convertible into or exchangeable for such securities or alter in any way any of its outstanding securities or make any change in outstanding ...
Conduct of Business Before the Closing Date. (a) Without the prior written consent of the Buyer, between the date hereof and the Closing Date, Leucadia and the Seller shall not permit either the Company or its Retained Subsidiaries to, except (W) as contemplated by this Agreement, (X) as set forth in Schedule 7.1(a), (Y) as it relates exclusively to the Excluded Assets or the Excluded Liabilities or (Z) in connection with the Pre-Closing Transfers:
(i) make any material change in the conduct of its businesses or enter into any transaction, other than in the ordinary course of business consistent with past practices;
(ii) make any change in any Organizational Document; issue any additional shares of capital stock, membership units or partnership interests or other equity securities or grant any option, warrant or right to acquire any capital stock, membership units or partnership interests or other equity securities or issue any security convertible into or exchangeable for such securities or alter in any way any its outstanding securities or make any change in outstanding shares of capital stock, membership units or partnership interests or other ownership interests or its capitalization, whether by reason of a reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, stock dividend or otherwise. Leucadia and the Seller shall advise Level 3 of the aggregate amount of cash, cash equivalents and marketable securities transferred or to be transferred to Leucadia or an Affiliate (other than the Company and its Retained Subsidiaries) pursuant to this Agreement;
(iii) make any sale, assignment, transfer, abandonment, sublease, assignment or other conveyance of its assets, Company Real Property or rights or any part thereof, other than pursuant to IRUs that are entered into in the ordinary course of business and on customary terms and which IRUs result in payments to the Company and its Subsidiaries of an aggregate amount not to exceed the greater of (i) $65,000 per day for each day between the date hereof and the Closing Date and (ii) $4.0 million;
(iv) subject any of its assets, properties or rights or any part thereof, to any Lien or suffer such to exist other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of law, Permitted Liens and Liens pursuant to the Company’s Credit Documents or the Company’s Real Estate Debt Documents;
(v) redeem, retire, purchase or otherwise acquire, directly or indirectly, any ...
Conduct of Business Before the Closing Date. (a) Except as set forth on Schedule 5.1(a), the Company covenants and agrees that, during the period from the date hereof to the earlier of the termination of this Agreement in accordance with its terms and the Effective Time (except as otherwise specifically contemplated by the terms of this Agreement), unless Parent shall otherwise consent in writing: (i) the businesses of the Company and its Subsidiaries shall be conducted, in all material respects, in the ordinary course of business and in a manner consistent with past practice and, in all material respects, in compliance with applicable laws; (ii) the Company shall continue to maintain, in all material respects, its assets, properties, rights and operations in accordance with present practice in a condition suitable for their current use and (iii) the Company shall use its commercially reasonable efforts consistent with the foregoing to preserve intact the business organization of the Company and its Subsidiaries, to keep available the services of the present officers and key employees of the Company and its Subsidiaries and to preserve, in all material respects, the present relationships of the Company and its Subsidiaries with persons with which the Company or any of its Subsidiaries has significant business relations. Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries shall (except as specifically contemplated by the terms of this Agreement), between the date of this Agreement and the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, directly or indirectly do, any of the following without the prior written consent of Parent:
(i) make any material change in the conduct of its businesses or enter into any transaction other than in the ordinary course of business and consistent with past practices;
(ii) make any change in any of its organizational documents; issue any additional shares of capital stock (other than upon the exercise of options to purchase shares of Company Common Stock outstanding on the date hereof), membership interests or partnership interests or other equity securities or grant any option, warrant or right to acquire any capital stock, membership interests or partnership interests or other equity securities or issue any security convertible into or exchangeable or exercisable for such securities or alter in any way any its outstanding securities or make any change in outstanding shares of...
Conduct of Business Before the Closing Date. (a) Without the prior written consent of the Buyer, between the date hereof and the Closing Date, the Company shall not, and the Sellers shall not permit the Company to, except as otherwise expressly permitted pursuant to the terms hereof:
(i) make any material change in the conduct of its businesses or enter into any transaction other than in the ordinary course of business consistent with past practices;
(ii) make any change in any Organizational Document; issue any additional membership interests or other equity securities, or grant any option, warrant or right to acquire any membership interests or other equity securities, or issue any security convertible into or exchangeable for such securities; or alter in any way any of its outstanding securities or make any change in the outstanding Interests, whether by reason of a reclassification, recapitalization, combination, exchange or readjustment of membership interests or otherwise;
(iii) make any sale, assignment, transfer, abandonment or other conveyance of its assets, properties or rights or any part thereof, except transactions pursuant to the existing Contracts specifically set forth in the schedules hereto;
(iv) subject any of its assets, properties or rights or any part thereof, to any Lien or suffer such to exist other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of law;
(v) redeem, retire, purchase or otherwise acquire, directly or indirectly, any membership interests of the Company, or declare, set aside or pay any dividends or other distribution in respect of such interests, other than distributions (A) provided for in the Operating Agreement, dated as of September 30, 1999, by and among the Company and the Sellers, as amended, and in accordance with the Company's debt agreements specifically set forth on Schedule 5.10, and (B) made to reduce Working Capital, except in the case of both clauses (A) and (B) above, where any such distributions could reasonably be expected to result in an Actual Working Capital Deficiency;
(vi) acquire any assets or properties, or enter into any other transaction, other than in the ordinary course of business consistent with past practice;
(vii) enter into any new (or amend any existing) employee benefit plan, program or arrangement or any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such...
Conduct of Business Before the Closing Date. (a) Without the prior written consent of the Buyer, between the date hereof and the Closing Date, except as required or expressly permitted pursuant to the terms hereof, neither Seller shall, and no Principal Owner shall permit either Seller to:
(i) make any change in the conduct of the Business or enter into any transaction other than in the ordinary course of business consistent with past practices;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Purchased Property or any part thereof, except transactions pursuant to the Contracts set forth in the Schedules hereto and dispositions of Inventory or of worn-out or obsolete equipment for fair or reasonable value in the ordinary course of business consistent with past practice;
(iii) subject any of the Purchased Property, or any part thereof, to any Lien or suffer such to exist other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of law and that will not, individually or in the aggregate, have a Material Adverse Effect;
(iv) acquire any assets, raw materials or properties, or enter into any other transaction, other than in the ordinary course of business consistent with past practice;
(v) enter into any new (or amend any existing) employee benefit plan, program or arrangement, or enter into any new (or amend any existing) employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) or grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or consistent with past practice;
(vi) make or commit to make any capital expenditure in excess of $25,000;
(vii) except with respect to the Sherstad Note, pay, lend or advance any amount to, or sell, transfer, lease, sublease or license any properties or assets to, or enter into any agreement or arrangement with, any of its Affiliates;
(viii) fail to keep in full force and effect insurance comparable in amount and scope to coverage maintained in respect of the Business;
(ix) take any other action that would cause any of the representations and warranties made by either Seller or any Principal Owner in this Agreement not to remain true and correct;
(x) make any change in any method of accounting or accounting principle, method, estim...
Conduct of Business Before the Closing Date. From and after the Execution Date until the Closing, except as expressly contemplated by this Agreement or as otherwise set forth on Section 5.1.1 of the Seller Disclosure Letter, the Seller will operate the Commercial Services Business only in the ordinary course consistent with past practice. In addition, without limiting the generality of the foregoing, the Seller will refrain from taking any of the following actions, except as expressly contemplated by this Agreement or unless consented to in writing by the Purchaser:
(a) selling, leasing or otherwise disposing of all or any portion of the assets or business of the Commercial Services Business to any Person (including, without limitation, any Seller Subsidiary), other than in the ordinary course of business;
(b) the formation of any Subsidiary to engage in the Commercial Services Business;
(c) merging or consolidating with and into any Person, or merging or consolidating any Person with and into it;
(d) engaging in any liquidation or dissolution;
(e) engaging in any transaction involving the Commercial Services Business in an amount in excess of $25,000, other than in the ordinary course of business or as otherwise permitted pursuant to subclause (l) below; provided, that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (e);
(f) entering into any new line of business on behalf of the Commercial Services Business;
(g) placing any Lien on any of the CSO Assets, other than Permitted Liens;
(h) entering into any personal property lease on behalf of the Commercial Services Business with a fixed rental over the term in excess of $25,000;
(i) entering into any Contract with, or making any loan to, any Covered Employee, other than (x) any Contract that would not have to be disclosed on Section 3.6 of the Seller Disclosure Letter, or (y) normal travel and expense advances or relocation allowances consistent with past practices;
(j) amending the Lien Termination Agreements (as defined in Section 5.1.10);
(k) amending in any material respect any Covered Contract or any other material contract of the Commercial Services Business; provided, that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (k);
(l) enter into any Contract with any client of the Commercial Services Business, including, without limitation, any Identified Pip...
Conduct of Business Before the Closing Date. (a) Without the prior written consent of the Buyer, between the date hereof and the Closing Date, the Seller shall not, except as required or expressly permitted pursuant to the terms hereof:
(i) make any material change in the conduct of the Focus Factor Business or enter into any transaction relating to or affecting the Focus Factor Business in an amount greater than $10,000 or having a term or duration of more than one year;
(ii) make any sale, assignment, transfer, abandonment or other conveyance of the Purchased Property or any part thereof;
(iii) subject any of the Purchased Property, or any part thereof, to any Lien or suffer such to exist;
(iv) fail to keep in full force and effect insurance comparable in amount and scope of coverage maintained in respect of the Focus Factor Business;
(v) take any other action that would cause any of the representations and warranties made by them in the Transaction Documents not to remain true and correct in all material respects (except as to representations and warranties which are qualified as to materiality, which representations and warranties must remain true and correct in all respects);
(vi) make, enter into, modify, amend in any material respect, renew, extend or terminate any Assigned Contract; or
(vii) agree or commit to do any of the foregoing.
(b) From and after the date hereof and until the Closing Date, the Seller shall:
(i) continue to maintain, in all material respects, the Purchased Property in accordance with prudent practice in a condition suitable for its continued future use that is consistent with its current use;
(ii) continue to manufacture and sell the Product in the ordinary course of business consistent with existing practice;
(iii) keep the Files and Records in the ordinary course of business and in accordance with existing practice; and
(iv) use Commercially Reasonable Efforts to maintain existing business relationships with customers, suppliers and contractors with respect to the Focus Factor Business in accordance with existing practice.
Conduct of Business Before the Closing Date. Buyer shall not take any action prior to the Closing Date that would cause any of the representations and warranties made by it pursuant to Article 5 not to remain true and correct.
Conduct of Business Before the Closing Date. (a) During the period from the date hereof to the earlier of the Closing Date and the date on which this Agreement is terminated pursuant to Section 14.1 (the “Interim Period”), without the prior written consent of the Buyer (not to be unreasonably withheld, delayed or conditioned), the Sellers shall cause the business of the Company Group to be conducted only in the ordinary course of business consistent with past practice, and shall cause the Company Group to preserve substantially intact its business organization in the ordinary course of business consistent with past practice. By way of amplification and not limitation, during the Interim Period, except as set forth in Schedule 8.1, without the prior written consent of the Buyer (not to be unreasonably withheld, delayed or conditioned), the Company Group shall not do any of the following, directly or indirectly, except as otherwise required by or expressly contemplated by this Agreement or required by Applicable Law:
(i) make any material change in the conduct of the Company Group Business or enter into any material transaction other than in the ordinary course of business consistent with past practice;
(ii) transfer, sell or dispose of any assets or properties of the Company Group Business, other than transfers, sales or dispositions of obsolete, broken or unsalable equipment in the ordinary course of business consistent with past practice;
(iii) authorize, or make any commitment with respect to, any single capital expenditure that is in excess of $2,500 or capital expenditures that are, in the aggregate, in excess of $2,500;
(iv) incur any Indebtedness, except in the ordinary course of business consistent with past practice;
(v) pay, lend or advance any amount to, or sell, transfer or lease any properties or assets to, any of its Affiliates, other than in the ordinary course of business consistent with past practice;
(vi) make any material change in any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP or Applicable Law;
(vii) make, change or revoke any election or method of accounting with respect to Taxes affecting or relating to it or affecting or relating to the Company Group Business except as required by Applicable Law, fail to file when due (taking into account any extension) any Tax Return required to be filed by any member of the Company Group, or amend any material Tax Return of any member...
Conduct of Business Before the Closing Date. Without the prior written consent of Buyer or the authorization of the Bankruptcy Court, after notice and a hearing, between the date hereof and the Closing Date, Sellers shall not, except as required or expressly permitted pursuant to the terms hereof or of any Ancillary Agreement, make any material change in the Acquired Assets, Material Contracts or lease for a Continuing IDC, or enter into any material transaction, in each case other than in the Ordinary Course of Business. Without limitation of the foregoing, except as may be required by the Bankruptcy Court, from the date hereof until the Closing, Sellers shall conduct the Business in substantially the same manner as conducted on the date of this Agreement, taking into account business exigencies arising as a result of Sellers’ financial condition and status as a filer under chapter 11 of the Bankruptcy Code, and in accordance with the principles set forth on Schedule 6.2 attached hereto.
