Conduct of Business by the. Finance Parties
(a) interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
Conduct of Business by the. Company Pending the Merger. Except as otherwise contemplated by this Agreement or disclosed in Section 5.01 of the Company Disclosure Schedule, after the date hereof and prior to the Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writing, the Company shall, and shall cause its subsidiaries to:
(a) conduct their respective businesses in the ordinary and usual course of business and in a manner substantially consistent with past practice;
(b) not (i) amend or propose to amend their respective articles of incorporation or bylaws or equivalent constitutional documents, (ii) split, combine or reclassify their outstanding capital stock, or (iii) declare, set aside or pay any dividend or distribution payable in cash, stock, property or otherwise, except for the payment of dividends or distributions to the Company or a wholly owned subsidiary of the Company by a direct or indirect wholly owned subsidiary of the Company;
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants or rights of any kind to acquire any shares of, their capital stock of any class or any debt or equity securities convertible into or exchangeable for any such capital stock, except that the Company may issue shares upon the exercise of Options outstanding on the date hereof;
(d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than (A) borrowings in the ordinary course of business or borrowings under the existing credit facilities of the Company or of any of its subsidiaries up to the existing borrowing limit on the date hereof, and (B) borrowings to refinance existing indebtedness on terms which are reasonably acceptable to Parent; provided that in no event shall aggregate indebtedness of the Company and its subsidiaries, net of all cash and cash equivalents, exceed Two Million, Seven Hundred Seventy-Five Thousand Dollars ($2,775,000.00), (ii) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock other than in connection with the exercise of outstanding Options pursuant to the terms of the Company Plans, (iii) make any acquisition of any assets or businesses other than expenditures for current assets for fixed or capital assets in ea...
Conduct of Business by the. Company Pending the Effective Time. The Company agrees that, between the date of this Agreement and the Effective Time, except as set forth in Section 6.1 in the Company Disclosure Schedule, as otherwise contemplated by this Agreement, as required by Applicable Law or as consented to in writing by Parent, the Company will, and will cause each Company Subsidiary to, in all material respects (i) conduct the Business substantially in the Ordinary Course of Business and (ii) use commercially reasonable best efforts to preserve the current relationships of the Company and each Company Subsidiary with such of the Customers, Suppliers and other Persons with which the Company or any Company Subsidiary has significant business relations as is reasonably necessary to preserve substantially intact the Business. Without limiting the foregoing, and as an extension thereof, except (1) as set forth in Section 6.1 of the Company Disclosure Schedule, (2) as otherwise contemplated by this Agreement, (3) as required by Applicable Law, (4) in connection with any payments to any holder of an Equity Interest in the Company in order to obtain a consent or release in connection with this Agreement or the Merger, or (5) as consented to in writing by Parent (such consent not to be unreasonably withheld or delayed), the Company shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, directly or indirectly, do, or agree to do, any of the following (provided that with respect to any act taken by the Company under subclauses (2) through (4) above, the Company shall notify Parent thereof):
(a) amend or otherwise change the certificate of incorporation or by-laws of the Company or equivalent organizational documents of any Company Subsidiary;
(b) except as necessary to comply with the requirements of any Contracts of the Company or a Company Subsidiary existing on the date hereof, issue, deliver, sell, pledge or encumber, or authorize, propose or agree to the issuance, delivery, sale, pledge or encumbrance of, any shares of its capital stock, or securities convertible into or exchangeable for, or Options or rights of any kind to acquire, any shares of any class or series of its capital stock (other than pursuant to the exercise of Options and other contractual rights existing on the date hereof which are disclosed in Section 6.1 of the Company Disclosure Schedule);
(c) except as permitted under this Agreement, declare, set asi...
Conduct of Business by the. Company Pending the Closing. Except as expressly contemplated by this Agreement or as required in connection with the Restructuring (including in any proceedings required under the Bankruptcy Code in connection with the Restructuring) or as set forth on Schedule 4.1, during the period between the date of this Agreement and the Closing, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its business only in the ordinary course and consistent with past practice, (ii) use reasonable efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertises, distributors, agents, officers and employees and other Persons with which it has significant business relationships, (iii) use reasonable efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice, (iv) use reasonable efforts to preserve the goodwill and ongoing operations of its business, (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice and (vi) comply in all material respects with applicable Laws:
Conduct of Business by the. Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement:
(i) the business of the Company shall be conducted only in the ordinary course;
(ii) the Company shall not (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its Certificate of Incorporation or By-laws; or (C) split, combine or reclassify the outstanding Company Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock.
(iii) the Company shall not (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Stock, except to issue shares of Company Common Stock in connection with the exercise of stock options and warrants outstanding on the date hereof; (B) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (D) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; or (E) except as contemplated by this Agreement, enter into any contract, agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business combination;
(iv) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; and
(v) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Company or for the acquisition of a substantial equity ...
Conduct of Business by the. Company Pending the Merger. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, the Company covenants and agrees that, unless COL shall otherwise agree in writing, other than actions taken by the Company in contemplation of the Merger, the Company shall not directly or indirectly do, or propose to take or agree in writing or otherwise to take any action which would prevent the Company from performing or cause the Company not to perform its obligations hereunder.
Conduct of Business by the. Company Pending the Closing. ------------------------------------------------------ Except as contemplated by this Agreement, the Stockholders covenant and agree that, during the period between the date of this Agreement and through and including the Closing Date, unless the Parent shall otherwise agree in writing, the Business shall be conducted only in, and the Company shall not take any action except in, the ordinary course of business and in a manner consistent with past practice. The Stockholders will not take, and will not permit the Company to take, any action that would cause any representation or warranty made by the Stockholders in this Agreement to become untrue in any material respect.
Conduct of Business by the. Finance Parties. No provision of this Agreement or any other Operative Document will:
20.1.1 interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it deems appropriate in its sole discretion;
20.1.2 oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim (except as may otherwise expressly be set forth herein); or
20.1.3 oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
Conduct of Business by the. Target Companies. Except as otherwise contemplated by or as necessary to comply with Seller’s obligations under this Agreement, from and after the date hereof until the Closing or earlier termination of this Agreement in accordance with its terms, the Seller shall cause each of the Target Companies to, except as consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), use commercially reasonable efforts to (a) conduct its business in all material respects in the ordinary course and in compliance in all material respects with applicable Law, (b) preserve substantially intact its business organization and to preserve the present commercial relationships with key Persons with whom it does business or has material business relations, (c) maintain its assets, properties, books of account and records consistent with its past practice, (d) preserve the goodwill and ongoing operations of its business, (e) not take or omit to be taken any action which would reasonably be expected to result in, individually or in the aggregate, a Target Company MAE and (f) to:
(a) not amend its organizational documents;
(b) not enter into or adopt a plan or Contract of recapitalization, reorganization, merger or consolidation, or adopt a plan of complete or partial liquidation or dissolution;
(c) not merge or consolidate with, or purchase all or substantially all the assets of, or otherwise acquire the business of, any person;
(d) not split, combine, reclassify or amend the terms of any Equity Interests or make or declare any dividend or distribution in respect of its Equity Interests;
(e) not grant, award, sell, pledge, issue or redeem any capital stock or issue or become a party to any subscriptions, warrants, rights, options, convertible securities or other Contracts or commitments of any character relating to its issued or unissued capital stock, or its other Equity Interests, if any, or grant any stock appreciation or similar rights;
(f) not amend, renew or terminate, or agree to a release, waiver, modification or termination of, a Contract with a Related Party (other than terminations as a result of the expiration of such Contract), or enter into a new transaction or Contract, with a Related Party;
(g) not make any change in any method of financial accounting or financial accounting practice or policy, other than those required by GAAP or the Financial Accounting Standards Board;
(h) sell, license, lease, transfer, assign, ab...
Conduct of Business by the. Companies Pending the Mergers. Prior to the Effective Time, unless Parent otherwise agrees in writing or as otherwise contemplated by this Agreement, each of the Companies:
(a) shall:
(i) conduct its business only in the ordinary course;
(ii) use its best efforts to preserve intact its business organization, to keep available the services of its present officers and key employees, and to preserve the good will of those having business relationships with it;
(iii) promptly advise Parent orally and in writing of any Company Acquisition Proposal and the substance thereof; and
(iv) immediately cease and terminate any existing activities, discussions, negotiations or Contract with any Person other than the other Parties with respect to any Company Acquisition Proposal; and
(b) shall not:
(i) directly or indirectly redeem, purchase or otherwise acquire any of its Company Stock;
(ii) amend its Company Charter Documents;
(iii) split, combine or reclassify any of its Company Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any of its Company Stock;
(iv) issue any additional shares of its Company Stock or Company Equity Rights of such Company;
(v) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business;
(vi) incur additional Indebtedness, or incur any other liabilities other than in the ordinary course of business;
(vii) enter into any Contract other than in the ordinary course of business;
(viii) dissolve, or merge or consolidate with or into any Person;
(ix) and shall not authorize any Person to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations or enter into any Contract concerning, any Company Acquisition Proposal;
(x) enter into any new employment agreements with any of its officers or employees or grant any increases in the compensation or benefits of its officers and employees or amend any Company Benefit Plan of such Company; or
(xi) agree to do any of the foregoing.
