Conduct of Business During Interim Period. (a) Except as expressly provided in this Agreement, as set forth in the Company Disclosure Statement or as expressly consented to in writing by Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Effective Time, the Company and each of its Subsidiaries will (x) conduct its operations according to its ordinary and usual course of business consistent with past practice, (y) use commercially reasonable efforts to preserve intact its business organization, to keep available the services of its officers and employees in each business function and to maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it, and (z) not take any action which would adversely affect its ability to consummate the Merger or the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, and except as set forth in the Company Disclosure Statement or as otherwise expressly provided in this Agreement, prior to the earlier of the termination of this Agreement or Effective Time neither the Company nor any of its Subsidiaries will, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), directly or indirectly, do any of the following:
(i) enter into, violate, extend, amend or otherwise modify or waive any of the terms of (A) any material joint venture, license (other than end user licenses), or agreement relating to the joint development or transfer of technology or the Company Proprietary Assets or (B) except in the ordinary course of business and consistent with past practice, any other material agreements, commitments or contracts (including end user licenses);
(ii) split, combine or reclassify any shares of its capital stock;
(iii) authorize, solicit, propose or announce an intention to authorize, recommend or propose, or enter into any agreement with any other person with respect to any plan of liquidation or dissolution, any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities, any material change in capitalization, or any material partnership, association, joint venture, joint development, technology transfer, or other material business alliance;
(iv) fail to renew any insurance policy naming it as a beneficiary ...
Conduct of Business During Interim Period. (a) Without limiting Section 4.1, the Corporation will from and including the date of this Agreement through to and including the Closing:
(i) do all such acts and things necessary to ensure that all of the representations and warranties of the Corporation contained in this Agreement remain true and correct in all material respects (except those representations and warranties which are qualified by materiality which shall be true and correct in all respects) and not do any such act or thing that would render any representation or warranty of the Corporation contained in this Agreement materially untrue or incorrect;
(ii) conduct its business and affairs and maintain its properties and facilities in, and not take any action except in, the usual, ordinary and regular course of business consistent with past practice;
(iii) ensure that its Subsidiaries conduct their respective businesses and affairs, and maintain their respective properties and facilities in, and not take any action except in, the usual, ordinary and regular course of business consistent with past practice; and
(iv) use commercially reasonable efforts to preserve intact its and its Subsidiaries’ present business organization, material assets (including the Corporation Mineral Rights) and goodwill, maintain its and its Subsidiaries’ real property interests (including title to, and leasehold interests in respect of, any real property) in good standing, keep available the services of its officers and employees as a group and preserve the current material relationships with suppliers, distributors, employees, consultants, customers and others having business relationships with it and its Subsidiaries.
(b) The Corporation will not directly or indirectly, without the prior written consent of MDCI, such consent not to be unreasonably withheld or delayed, from and including the date of this Agreement through to and including the Closing:
(i) issue any Common Shares or securities convertible into Common Shares, other than pursuant to the exercise or conversion of Options or RSUs outstanding as at the date hereof or pursuant to the Corporation’s security based compensation arrangements;
(ii) sell, pledge, lease, dispose of or encumber any material assets, rights or properties (including any interest in any Material Subsidiary), except in the ordinary course of business;
(iii) acquire or agree to acquire (by merger, amalgamation, acquisition of shares or assets or otherwise) any company, partnership or o...
Conduct of Business During Interim Period. During the Interim Period, the Company shall conduct its business in the ordinary course in all material respects and use its reasonable efforts to preserve intact in all material respects the business organization of its business. In addition, to the extent the Company is permitted to do so under applicable Laws, the Asset Documents, and applicable confidentiality obligations, and to the extent that the following are reasonably within the Company’s control, the Company shall:
(A) Keep Buyer reasonably informed of all material acts, matters and things relating to the Company and the Assets; provided, the Company is not required to disclose any information that in the good faith judgment of Oronite and the Local Sellers’ Representative would reasonably be expected to:
(1) violate any applicable Law, including but not limited to the Competition Law, relating to the sharing of competitively-sensitive information between competitors, provided that notwithstanding compliance with applicable Law:
(a) the Company shall provide summaries or aggregations of such information to the extent practicable;
(b) the disclosure of any such information should be limited to the information that is strictly necessary for the proper evaluation and execution of the transactions contemplated under this Agreement; and
(c) the Parties shall establish protocols of access to such information in order to (i) limit the access to such information only to those employees and representatives of Buyer whose functions are not directly related to strategic decisions or sales, and (ii) keep a record of all contact between the Parties regarding such information exchanges; or
(2) waive any privilege.
(B) Not commit to any operation reasonably anticipated by the Company to require future expenditures by Buyer in excess of US$500,000.
(C) Provide Buyer, or any Person properly authorized by Buyer and approved by the Company, Oronite and the Local Sellers’ Representative, to the extent permitted by applicable Laws (including but not limited to any and all antitrust and competition regulations), reasonable access to all files, documents, records, correspondence, data or other information in possession of the Company and reasonably requested by Buyer, upon reasonable prior written notice containing all relevant information with respect to the relevant authorized Person, subject to all of the following:
(1) Such information relates to the Company, the Assets and material operations carried out in resp...
Conduct of Business During Interim Period. Avista covenants and agrees that:
Conduct of Business During Interim Period. During the Interim Period, and taking into consideration the fact that Avista is not the Operator and except as provided for in Section 7.1(a) or as reasonably necessary under emergency circumstances (or if required or prohibited pursuant to applicable Law or the Ownership and Operation Agreement), and always subject to and consistent with the extent of Avista’s rights and limitations under the Ownership and Operation Agreement (but without in any way limiting the provisions of Section 7.11), Avista shall comply with the following:
(i) Avista shall conduct its business related to the Avista Colstrip Units 3&4 Interests, and utilize its Commercially Reasonable Efforts to cause the Avista Colstrip Units 3&4 Interests to conduct its business, in the ordinary course;
(ii) Avista shall comply in all material respects with the Ownership and Operation Agreement;
(iii) Avista shall take all Commercially Reasonable Efforts to preserve and protect the Avista Colstrip Units 3&4 Interests subject to the terms of the Ownership and Operation Agreement and applicable Laws;
(iv) With respect to any Proposals submitted for approval of the Committee prior to the earliest of the effectiveness of the Vote Sharing Agreement or the termination of this Agreement, (A) in the case of any Remediation Proposals, Avista, following its good faith consideration of NorthWestern’s input with respect to any such Proposals (and the input of Talen in the event NorthWestern assigns its right to acquire the Avista Unit 3 Interests to Talen Montana, LLC), shall continue to vote on such Proposals in accordance with the provisions of the Ownership and Operation Agreement, and (B) in the case of any other Proposals, Avista shall vote in each case in accordance with any instructions provided by NorthWestern, provided in the event NorthWestern assigns its right to acquire the Avista Unit 3 Interests to Talen Montana, LLC Avista shall vote no on such other Proposals, unless NorthWestern and Talen Montana, LLC both instruct Avista’s to cast a yes vote;
(v) With respect to any Poll conducted under the NorthWestern- Talen Vote Sharing Agreement, Avista shall vote in accordance with any instructions provided by NorthWestern;
(vi) Except as set forth on Schedule 7.1, Avista shall not assign, terminate, amend, give any consent with respect to or waive any rights under, in any material respect, any Material Contract;
(vii) Avista shall not take any action or enter into any commitment with respect to or in ...
Conduct of Business During Interim Period. During the Interim Period TNT Express shall refrain from taking the following actions (and shall procure that its Group Companies shall refrain from taking any such actions) without the prior written consent of FedEx, which consent FedEx shall not unreasonably withhold or delay:
Conduct of Business During Interim Period. During the Interim Period, except as Buyer may otherwise consent, Seller shall:
(i) Carry on the Business in the normal course and only in the normal course, except as otherwise contemplated by this Agreement;
(ii) Not make any material change in its customary operating methods, or create or discharge Receivables or Liabilities or acquire or dispose of Purchased Assets except in the ordinary course of the Business;
(iii) Not acquire or dispose of any fixed assets having a value of more than $50,000 (except as already planned pursuant to the Polycast Consolidation), or make any commitment to do so, without the approval of Buyer;
(iv) Maintain and keep the Purchased Assets in good repair (normal wear and tear excepted), and maintain insurance with respect to the Purchased Assets and business in accordance with past practice;
(v) Use reasonable efforts to preserve for Buyer the good will of Seller's suppliers, customers, landlords, Employees and others having a business relationship with the Business;
(vi) Notify Buyer immediately of any Material Adverse Change and of any breach of any representation, warranty or covenant in this Agreement, and supplement the Schedules to this Agreement promptly as required to correct any errors therein or to reflect any changes in the information required to be set out therein; and
(vii) Not commit any act or omission that would cause a breach of any representation, warranty or covenant contained in this Agreement.
Conduct of Business During Interim Period. PSE covenants and agrees that:
Conduct of Business During Interim Period. During the Interim Period, Boliden will cause BWCL to carry on its business in the ordinary and normal course in a prudent, businesslike, and efficient manner and substantially in accordance with the procedures and practices in effect on the date hereof. Boliden will consult with and obtain the consent of Breakwater before making any decision or taking any action concerning or with respect to BWCL that would reasonably be expected to have a material effect on BWCL or the Business. Without limiting the generality of the foregoing, during the Interim Period Boliden will not, and will not permit BWCL to, without the prior consent in writing of Breakwater or except as expressly permitted herein:
(a) purchase or sell, consume or otherwise dispose of any of its assets except Inventories sold in the ordinary course of business or assets which are not material to the Business or assets which are obsolete or in the aggregate do not exceed $100,000;
(b) enter into any contract or assume or incur any liability except in the ordinary course of business;
(c) waive or surrender any material right;
(d) make any capital expenditures or commitment therefor in excess of $50,000;
(e) issue any shares in its capital or any rights or options to acquire any shares in its capital;
(f) increase or improve any compensation, pension, bonus, share of profits or other benefit to, or for the benefit of, any employee, director, or officer of BWCL except in the ordinary course of business;
(g) pay or declare any dividends, make any distributions, or redeem or repurchase any of the shares of BWCL;
(h) take any steps or proceedings that will have or would reasonably be expected to have a material adverse affect on the working capital of BWCL (other than causing BWCL to pay all its cash on hand to Boliden or its Affiliates on or about May 31, 2004);
(i) alter the articles and/ or the by-laws of BWCL; or
(j) pay out any cash from BWCL to Boliden or its Affiliates except the payment made on May 28, 2004 of US$3,664,883 except as expressly contemplated and in accordance with the Pre Closing BWCL Transactions.
Conduct of Business During Interim Period. As of the date of this Merger Agreement until the earliest of (i) the Settlement Date or (ii) the date on which this Merger Agreement is terminated in accordance with the provisions of Clause 9 (the “Interim Period”), the Company shall, and shall cause its Group Companies to (i) conduct its or their business and operations in all material respects in the ordinary course of business consistent with past practice and (ii) to the extent consistent with the foregoing, use its or their respective commercially reasonable efforts to preserve their business organizations in a state of operation at least as good as their current state of operation and maintain existing relations and goodwill with governmental authorities, customers and lessees, suppliers, creditors, and other persons with which they have business dealings and to keep available the services of their present employees and agents, all the foregoing except to the extent that the Company and its respective Group Companies are prohibited from complying with the foregoing as a result of the following sentence. Furthermore, during the Interim Period, the Company shall not, and shall cause its respective Group Companies not to, without the Offeror’s prior written consent, take any of the actions set forth in Schedule G to this Merger Agreement.
