Conduct of Business by Seller. (a) During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to its terms or the Closing Date, the Seller, the Company, and each of their respective subsidiaries shall, except to the extent that the other parties shall otherwise consent in writing, carry on its business, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has business dealings. In addition, the parties will promptly notify each other of any material event involving its business or operations.
(b) Except as permitted or required by the terms of this Agreement, during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing Date, Seller shall not do any of the following, and shall not permit any of its subsidiaries to do any of the following, except to the extent that the other party shall otherwise consent in writing:
(i) purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof;
(ii) acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, limited liability company, general or limited partnership, business trust, unincorporated association or other business organization, entity or division thereof, or otherwise acquire or agree to acquire all or substantially all of the assets of any of the foregoing, or enter into any joint ventures, strategic partnerships or similar alliances;
(iii) incur or enter into any agreem...
Conduct of Business by Seller. From the date hereof to the Closing Date, Seller will, except as required in connection with the transactions contemplated by this Agreement or consented to in writing by Purchaser:
(a) Except and only to the extent necessary to secure new product distribution opportunities, carry on the 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 agreement, transaction or activity or make any commitment with respect to the Business except those in the ordinary and regular course of business and not otherwise prohibited under this Section 5.1 and except as otherwise consented to in writing by Purchaser;
(b) Use its reasonable efforts to preserve intact the goodwill and business organization of the Business, to keep the officers and employees of the Business available to Purchaser and to preserve the relationships of the Business with customers, suppliers and others having business relations with the Business;
(c) Not (i) sell any of the Assets, (ii) create, incur or assume any indebtedness secured by the Assets, or (iii) grant, create, incur, or suffer to exist any liens or encumbrances on the Assets which did not exist on the date hereof;
(d) Not amend, modify or extend in any manner the terms of any employment agreement with any employee of Seller;
(e) Perform in all material respects all of its obligations under all Scheduled Leases (except those being contested in good faith) and not enter into, assume or amend any contract or commitment that would be a Scheduled Lease;
(f) Use its reasonable efforts to continue to maintain and service the Assets used in the conduct of the Business in the same manner as has been its consistent past practice; and
(g) Use its reasonable efforts to maintain its inventory of products and stock-in-trade at normal levels in the ordinary course of business.
(h) Cooperate with Purchaser in the consummation of the purchase by Purchaser of certain other businesses that Purchaser has identified to Seller.
Conduct of Business by Seller. Except to the extent consented to in writing by Buyer or as expressly permitted or contemplated by the Agreement, during the period from the date of the Agreement to the Closing, Seller shall carry on its business in the Ordinary Course of Business and, to the extent consistent therewith, use best efforts to preserve intact its current business organizations, keep available the services of its current employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with it. Without limiting the generality of the foregoing, without Buyer's written consent during the period from the date of the Agreement to the Closing, none of the Selling Parties shall:
(a) amend its Governing Documents;
(b) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof; or (ii) any assets that are material, individually or in the aggregate, to Seller, except purchases in the Ordinary Course of Business;
(c) sell, lease, license, mortgage or otherwise encumber or subject to any Encumbrances (other than Permitted Encumbrances pursuant to its existing indebtedness) or otherwise dispose of any of its properties or assets, except in the Ordinary Course of Business;
(d) incur any indebtedness for borrowed money (except to Buyer) or guarantee any such indebtedness of another person, guarantee any debt securities of another person, except for borrowings under its existing credit facilities for working capital purposes, in an aggregate amount of less than $100,000, the endorsement of checks in the Ordinary Course of Business and the extension of credit to customers in the Ordinary Course of Business; or (ii) make any loans, advances or capital contributions to, or investments in, any other Person;
(e) except for the items currently contracted for by Seller, make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $10,000 or, in the aggregate, are in excess of $50,000;
(f) make any material Tax election or settle or compromise any material income Tax liability;
(g) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued or contingent, asserted or unasserted) relating to the Assets, the business of the Seller or the Assumed Li...
Conduct of Business by Seller. From the data hereof until the Closing Date, Seller shall, except as expressly required or permitted by this Agreement and except as otherwise consented to in writing by Purchaser:
(i) conduct the operations of the Package Design Team and employ the Assets in the ordinary course of business consistent with past practice;
(ii) not grant, create, incur or suffer to exist any Encumbrance (other than a Permitted Encumbrance granted, created, incurred or suffered to exist in the ordinary course of business consistent with past practice) on the Assets;
(iii) not increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any Package Design Team Employees, other than in the ordinary course of business consistent with past practice;
(iv) not adopt or amend any Benefit Plan with respect to Package Design Team Employees or to increase the benefits provided under any Benefit Plan to Package Design Team Employees other than in the ordinary course of business consistent with past practice;
(v) not grant any license or sublicense or otherwise transfer, other than in the ordinary course of business consistent with past practice, any portion of its right, title or interest in any Intellectual Property included in the Assets; and
(vi) not authorize, or commit or agree to take, any of the foregoing actions.
Conduct of Business by Seller. Prior to Closing, except as required in connection with the transactions contemplated by this Agreement and except as otherwise consented to in writing by Buyer, Seller will:
(a) carry on the Business and maintain and service the Assets in the ordinary course consistent with the Business's conduct as of the date of this Agreement and maintain all insurance in place for the Business and currently covering the Assets;
(b) other than as set forth in Article 4.4 hereof, not sell, transfer, convey, lease, grant third party rights to or otherwise dispose of any of the Assets except in the ordinary course of business;
(c) not create, incur or assume any indebtedness or other obligation secured by any Asset, or grant, create or incur any Lien on any Asset;
(d) not enter into, modify or extend in any manner the terms of any employment, compensation, severance or similar agreement with any employee of the Business (except for increases in employee remuneration made in the ordinary course of business consistent with past practice); and
(e) promptly notify Buyer of any event or occurrence that has had or may reasonably be expected to have a material adverse effect on the Assets or the Business.
Conduct of Business by Seller. Except (i) in connection with a Superior Proposal, (ii) for the Restructuring, (iii) as required by Law or (iv) for matters set forth on Schedule 4.01 or otherwise contemplated by this Agreement, from the date of this Agreement to the Closing Date, Seller shall cause each Transferred Entity and each Subsidiary of a Transferred Entity to conduct its business in the Ordinary Course of Business and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them to the end that its goodwill and ongoing business shall be unimpaired at the Closing Date. In addition, and without limiting the generality of the foregoing, except for (i) the Restructuring, (ii) in connection with a Superior Proposal, (iii) as required by Law or (iv) for matters set forth on Schedule 4.01 or otherwise contemplated by this Agreement, from the date of this Agreement to the Closing Date, Seller shall not, and shall not permit any of its Subsidiaries, Transferred Entity or any Subsidiary of a Transferred Entity, to do any of the following without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed:
(a) (i) split, combine or reclassify any of its Equity Interests or issue or authorize the issuance of any other Equity Interests in respect of, in lieu of or in substitution for its Equity Interests, or (ii) purchase, redeem or otherwise acquire any of its Equity Interests;
(b) issue, deliver, sell or grant any of its Equity Interests;
(c) amend its articles or certificate of incorporation, bylaws or other comparable charter or organizational documents, except for such amendments to its certificate of incorporation, bylaws and other comparable charter or organizational documents that do not have an adverse effect on the Transactions, or adopt a plan of complete or partial liquidation or resolutions providing for its complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(d) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing all or substantially all the assets of or all or substantially all the outstanding Equity Interests in, any business or any corporation, partnership, joint venture, limited liability ...
Conduct of Business by Seller. From the date hereof until the Closing Date, Seller shall (and shall cause Maquiladora to), except as expressly required or permitted by this Agreement and except as otherwise consented to in writing by Purchaser:
(i) employ the Assets in the ordinary course of business consistent with past practice;
(ii) not engage the Assets in any new material line of business;
(iii) not grant, create, incur or suffer to exist any Encumbrance (other than a Permitted Encumbrance granted, created, incurred or suffered to exist in the ordinary course of business consistent with past practice) on the Assets; and
(iv) not authorize, or commit or agree to take, any of the foregoing actions.
Conduct of Business by Seller. Pending Closing Seller covenants and agrees that, from and after the date of this Agreement and until the Closing, except as otherwise specifically consented to or approved by the Buyer in writing:
Conduct of Business by Seller. From the date hereof through the Closing, except as disclosed on Schedule 5.4 hereto or otherwise contemplated by this Agreement, and, except as consented to or approved by THEH in writing, Seller covenants and agrees that:
(a) each of the Company and the Subsidiaries shall operate its business in the ordinary and usual course in accordance with past practices;
(b) neither the Company nor any Subsidiary shall issue or sell (i) any shares of its capital stock or (ii) any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any shares of its capital stock or make any change in its issued and outstanding capital stock or redeem, purchase or otherwise acquire any of its capital stock;
(c) neither the Company nor any Subsidiary shall (i) increase in any manner the compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its directors, officers or other employees other than increases in compensation in the ordinary course of business and consistent with past practice and which are not material in the aggregate; (ii) pay or agree to pay any pension, retirement allowance or other employee benefit to any director, officer or employee, whether past or present, other than as required by applicable law, contracts or plan documents in effect on the date of this Agreement; (iii) enter into any new employment, severance, consulting, or other compensation agreement with any director, officer or employee or other person other than in connection with any new hires or promotions in the ordinary course and consistent with past practice; or (iv) commit itself to any additional pension, profit-sharing, deferred compensation, group insurance, severance pay, retirement or other employee benefit plan, fund or similar arrangement or adopt or amend or commit itself to adopt or amend any of such plans, funds or similar arrangements in existence on the date hereof;
(d) neither the Company nor any Subsidiary shall (i) amend its articles of incorporation, bylaws or similar instruments, (ii) declare any dividend or make any distribution with respect to its capital stock, (iii) assume, incur or guarantee any obligation for borrowed money other than trade payables in the ordinary course of business consistent with past practice, (iv) cancel or compromise, except for compromises of current or former short-term trade receivables or other current assets in the ordinary course of business consistent ...
Conduct of Business by Seller. From the date hereof until the Closing Date, except as Buyer may previously consent in writing, Seller shall:
A. Carry on its business and activities in the ordinary course as previously carried on, and shall not make or institute any methods of management, accounting or operation that will vary materially from those methods used by Seller as of the date of this Agreement. Without limitation of the generality of the foregoing, Seller shall not enter into any agreement or arrangement involving the sale or lease of a material portion of its assets or the granting of any preferential right to purchase such assets, properties or rights, except in connection with the sale or lease of inventory to customers in the ordinary course of business;
B. Maintain in full force and effect the insurance policies listed in EXHIBIT "4.18" to this Agreement;
C. Make no change in its Articles of Incorporation or By-Laws, except to change its name as contemplated herein;
D. Enter into no contract or commitment, except contracts or commitments entered into in the ordinary course of business, none of which (other than inventory purchases customary in nature and amount) shall involve payment by Seller of more than $25,000.00;
E. Terminate none of the contracts or agreements listed in EXHIBIT "4.24" or modify any of said contracts or agreements except in accordance with their terms;
(i) Grant no increase in salaries or compensation payable or to become payable by it to any officer, employee, sales agent or representative, other than increases in customary amounts pursuant to normally scheduled salary reviews; or (ii) increase no benefits payable under any employee plan or otherwise to any officer, employee, sales agent or representative;
G. Duly comply in all material respects with all laws, regulations, ordinances, orders, injunctions and decrees applicable to it and to the conduct of its business;
H. Encumber or mortgage none of its property or incur no liability for borrowed money, other than in the ordinary course of business, make no loans or advances to or assume, guarantee, endorse or otherwise become liable with respect to, the obligations of any other person, firm or corporation;
I. Acquire or agree to acquire none of the assets or capital stock of any other person, firm or corporation, except for purchases from suppliers in the ordinary course of business;
J. Make or agree to make no capital expenditures in excess of $25,000.00 for any single item, or $50,000.00 in the ag...
