Conduct of Business in Ordinary Course. INT'X.xxx will carry on its business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxx. The foregoing notwithstanding, INT'X.xxx will not: (a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,000; (b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxx; (c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxx; (d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxx; (e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxx's business PROVIDED THAT INT'X.xxx consults with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto; (f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxx's products or services in a manner adverse to INT'X.xxx; (g) accelerate the vesting or otherwise modify any INT'X.xxx Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated hereby; (h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time; or (i) agree in writing or otherwise to take any of the foregoing actions.
Appears in 4 contracts
Samples: Agreement and Plan of Reorganization (Lionbridge Technologies Inc /De/), Agreement and Plan of Reorganization (Jeanty Roger O), Agreement and Plan of Reorganization (Lionbridge Technologies Inc /De/)
Conduct of Business in Ordinary Course. INT'X.xxx Except (i) as set forth on Schedule 5.1, (ii) as expressly required by this Agreement or any Ancillary Agreement, or (iii) with the prior written consent of Buyer, which consent will carry on its business not be unreasonably withheld or delayed, during the period from the date of this Agreement to the Closing Date, Sellers shall, and shall cause their Affiliates to, conduct the Business in all material respects in the ordinary course in substantially of business consistent with past practice. Without limiting the same manner generality of the immediately preceding sentence and except as heretofore conducted andset forth on Schedule 5.1 or as contemplated by the Investment Asset Identification Protocol, to the extent relating to the Business during the period from the date of this Agreement to the Closing Date, Sellers shall not, and shall cause their Affiliates not to, (except with the prior written consent of Buyer, which consent will not be unreasonably withheld or delayed):
(a) enter into, amend in any material respect or extend any Material Business Contract or other Contract that would have been a Material Business Contract had it been entered into, amended or extended, prior to the date of this Agreement except to the extent Sellers or their Affiliates reasonably and in good faith conclude that such action is necessary to comply with Applicable Law;
(b) other than Investment Assets and other than acquisitions, dispositions or transfers in the ordinary course of business consistent with past practice, acquire, dispose of or transfer any asset relating to the Business or that presently does or would at the Closing constitute part of the Transferred Assets, in each case, with a value in excess of $1,000,000 per such businessasset or $5,000,000 in the aggregate;
(c) pay, use all reasonable best efforts discharge or satisfy any material claims or Liabilities associated with the Business, other than the payment, discharge or satisfaction of claims or Liabilities reserved against in the Business Financial Statements subject to reimbursement by insurance or indemnity or incurred in the ordinary course of business consistent with past practice since the date of the Business Financial Statements;
(d) declare, set aside, make or pay any dividend or other distribution in respect of any Equity Interests of any Acquired Company or otherwise purchase or redeem, directly or indirectly, any Equity Interests of any Acquired Company;
(e) other than in connection with the management of Investment Assets associated with the Business or in the ordinary course of business consistent with past practice, (i) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person in excess of $1,000,000, (ii) make any loans or advances of borrowed money or capital contributions to, or equity investments in, any other Person or group of related loans, advances or contributions in excess of $1,000,000 or (iii) issue or sell any debt securities, in each case, with respect to the Business;
(f) issue, sell, grant, confer, award, pledge or otherwise encumber, any Equity Interests of any Acquired Company;
(g) other than in connection with the management of Investment Assets, acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any Person or assets comprising a business in connection with the Business or make in connection with the Business any material investment, either by purchase of any Equity Interests, or contribution to capital, in or of any other Person in an amount, in cash or property, in excess of $5,000,000;
(h) with respect to the Business (i) enter into any employment or severance agreement, other than for new Business Employees in the ordinary course of business consistent with past practice, (ii) enter into or increase the benefits payable under severance, change of control, retention or termination pay policies or agreements in effect on the date of this Agreement, other than as required by Applicable Law, (iii) adopt any new or amend any existing Plan or other bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan or agreement for the benefit or welfare of any director, officer or employee, other than for changes to any Plan or for the benefit of any new employees in the ordinary course of business consistent with past practice and policies other than as required by Applicable Law, or (iv) promise, grant or agree to preserve intact its present grant any bonus or increase the compensation or benefits of any employee, other than in the ordinary course of business organizationconsistent with past practice and other than as required by Applicable Law; provided, keep available the services of its present officershowever, consultants that CGLIC and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report the general status any of the ongoing operations Acquired Companies or their Affiliates may enter into, adopt or amend any of the business foregoing prohibited agreements or take any of INT'X.xxx. The the foregoing notwithstandingprohibited actions which, INT'X.xxx will not:in the good faith judgment of Sellers after disclosure to and approval by Buyer (such approval being required in the event the cost of such actions after the Closing are to be borne directly or indirectly by Buyer), are necessary to conduct or maintain the Business in the ordinary course consistent with past practice;
(ai) (A) make any material change with respect to the Business in any (1) accounting or financial reporting principles, practices, methods or policies or (2) method of calculating any bad debt contingency or other reserve for accounting, financial reporting or Tax purposes, except, in each case, as may be required by Applicable Law, GAAP or SAP, (B) except in the ordinary course of business consistent with past practice, make any change with respect to the Business in any pricing, selling, employment, credit or allowance principles, practices, methods or policies or (C) make any change with respect to the Business in the fiscal year, except as may be required by Applicable Law, GAAP or SAP;
(j) make or determine to make any material addition to or material release from Reserves for future insurance policy or reinsurance contract benefits or other insurance policy claims and benefits related to the Business other than (i) as a result of new business produced, (ii) in the ordinary course of business consistent with past practice or (iii) as is otherwise consistent with the Statement of Net Settlement Methods;
(k) make any material change in the actuarial, investment (including allocation of investments among segments of CGLIC’s general account and derivatives transactions), reserving, hedging, underwriting or claims administration policies, practices or principles with respect to the Business, except as may be appropriate to conform to changes in Applicable Law, SAP or GAAP;
(l) make any changes, other than in the ordinary course of business consistent with past practice, in the terms or policies with respect to, the appointment of Producers or the payment of commissions to any Producer;
(m) dispose of or fail to keep in effect any material rights in, to, or for the use of any of the Intellectual Property, except for rights which expire or terminate in accordance with their terms;
(n) make or authorize with respect to the Business any single capital expenditure in excess of $1,000,000 or capital expenditures in excess of $5,000,000 in the aggregate;
(o) other than in the ordinary course of business consistent with prior practice, enter into any material commitment past practice or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in an amount in excess of $50,0001,000,000, with respect to the Business, forgive, cancel, compromise, waive or release any debts, claims or rights;
(bp) grant permit or suffer any bonusLiens on any Transferred Assets, severance on any of the Transferred Investment Assets or termination pay to on any officer, director, independent contractor of the assets (tangible or employee intangible) or properties of INT'X.xxx;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rightsAcquired Company, other than Liens incurred in the ordinary course of business consistent with prior practicepast practice or Permitted Liens;
(q) amend the Organizational Documents of any Acquired Company, or is granted distribution rights adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any type or scope Acquired Company, other than with respect to any products of INT'X.xxx;
(d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxx;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxx's business PROVIDED THAT INT'X.xxx consults with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms CIGNA Life and conditions with dealers, distributors and other resellers of INT'X.xxx's products or services in a manner adverse to INT'X.xxx;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of as required by this Agreement or any of the transactions contemplated herebyAncillary Agreements;
(hr) terminate or permit to expire any insurance (excluding reinsurance) coverage related to the Business, except to the extent that such insurance policies are replaced with policies that offer substantially similar coverage;
(s) undertake any write down in the book value of (x) any investment security of any obligor by an amount in excess of $1,000,000 or (y) any other Transferred Assets or Transferred Investment Assets by an amount in excess of $1,000,000, except as is otherwise consistent with the Statement of Net Settlement Methods;
(t) terminate, assign or attempt to assign any Investment Advisory Contracts other than in the discharge of fiduciary duties;
(u) with respect to Transferred Investment Assets, take any prohibited action which would make identified on Schedule 5.1(u);
(v) close out any representation or warranty open hedge positions in this Agreement untrue or incorrectthe DC Hedge Program, as if made as except in the ordinary course of such timebusiness; or
(iw) agree in writing or otherwise to take any of the foregoing actionsactions described above in clauses (a) through (v) of this Section 5.1; provided, however, that, without the consent of Buyer, Sellers shall be permitted to cause CIGNA Bank, CIGNA Financial Services, Inc., Global Portfolio Strategies, Inc. and CIGNA Financial Partners, Inc. to pay net dividends in an aggregate amount of up to $5,000,000 plus, if the Closing Date occurs after January 1, 2004, a fraction, the numerator of which shall be $10,000,000 multiplied by the number of days by which the Closing Date follows January 1, 2004, and the denominator of which shall be 366.
Appears in 2 contracts
Samples: Stock Purchase and Asset Transfer Agreement (Cigna Corp), Stock Purchase and Asset Transfer Agreement (Prudential Financial Inc)
Conduct of Business in Ordinary Course. INT'X.xxx HT will carry on its business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx HT will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxHT. The foregoing notwithstanding, INT'X.xxx HT will not:
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,00015,000; provided, however, that (i) this limitation shall not apply to up to $45,000 in the aggregate relating to the scheduled buildout of HT's 1st floor office space at 000 Xxxxxxxxxx Xxx., Xxxxxxxxx, XX; and (ii) this limitation shall not apply to up to $50,000 in the aggregate relating to scheduled computer equipment replacements and upgrades, which amount shall not exceed an aggregate of $43,000 as of April 30, 2000, or an aggregate of $50,000 as of June 30, 2000.;
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxxHT except as provided for in the employment agreements described in Section 3.4 of the HT Disclosure Schedule;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxHT;
(d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxHT;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx HT in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxHT's business PROVIDED THAT INT'X.xxx HT consults with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxHT's products or services in a manner adverse to INT'X.xxxHT;
(g) accelerate the vesting or otherwise modify any INT'X.xxx HT Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated herebysecurities;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time;
(i) make any expenditures on behalf of the Stockholder;
(j) permit, allow or cause HT's balance sheet to negatively change by more than $100,000 in the aggregate from the amounts on the audited December 31, 1999 balance sheet as a result of the netting of (i) cash; (ii) accounts receivables of less than 60 days; (iii) work-in-process less than 30 days; (iv) accounts payable and accrued expenses, notes, and (v) other liabilities; provided, that this $100,000 negative change will not include the effect of the permitted buildout and equipment replacement and upgrade expenses identified in Section 6.1(a), or expenses related to the transactions contemplated by this agreement of up to an aggregate of $40,000 as described in Section 8.4. In the event that the above calculation results in a negative change of more than $100,000, but less than $250,000 at any time prior to the Closing Date, Stockholder may elect to pay to Parent such amount of variance in cash or other immediately available funds or reduce the Base Amount by such amount of variance, in which case Parent shall not have the right to terminate this Agreement except as otherwise contemplated in Article XI below.
(k) fail to retain as an employee, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxxxx or Xxxx Xxxxx (the "Key Employees");
(l) lose any of the following key customer accounts: Ethicon, Inc.; Aetna; Time Magazine; Codman & Xxxxxxxxx/Xxxxxxx & Xxxxxxx; EndoSurgery; Thomson & Thomson; Xxxxxx (Bristol Xxxxx/Squibb), unless in each case if such account is lost, it is replaced with new customers or new divisions of existing customers of substantially similar revenue potential matching the expected amounts and periods of purchases by the lost account. For purposes of this Section 6(l), loss of an account shall occur if HT receives written or oral notice of such account's intent to discontinue or materially decrease level of services being purchased, excluding any effects of seasonality; or
(im) agree in writing or otherwise to take any of the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Lionbridge Technologies Inc /De/), Agreement and Plan of Reorganization (Lionbridge Technologies Inc /De/)
Conduct of Business in Ordinary Course. INT'X.xxx From and after the Effective Date and prior to the Closing Date, the Company will not and the Sellers will not cause the Company to take any actions inconsistent with Section 3.23 or which will lead to a Material Adverse Effect occurring. With the exception of the provisions set forth in this Agreement and the transaction contemplated herein, the Company will carry on its (and the Sellers shall cause the Company to carry on) their business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its their respective present business organization, keep available the services of its their respective present officers, consultants and employees and preserve its their relationships with customers, suppliers and distributors and others having business dealings with itthem. INT'X.xxx will The Sellers shall cause the officers of the Company to confer on a regular and frequent basis at such times as the Purchaser may reasonably request with representatives of Parent the Purchaser to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxthe Company. The foregoing notwithstandingNotwithstanding the foregoing, INT'X.xxx the Sellers and the Company may not and will not:not without the prior written consent of the Purchaser (which shall not be unreasonably withheld):
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,00025,000;
(b) grant any bonusother than in the ordinary course of business consistent with prior practice, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxx;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxx;
(dc) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner an adverse to INT'X.xxx;manner; or
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxx's business PROVIDED THAT INT'X.xxx consults with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(fd) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxx's products or services third parties in a manner adverse to INT'X.xxx;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated hereby;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time; or
(i) agree in writing or otherwise to take any of the foregoing actions.Company
Appears in 2 contracts
Samples: Stock Purchase Agreement (CDC Corp), Stock Purchase Agreement (CDC Software CORP)
Conduct of Business in Ordinary Course. INT'X.xxx (a) The Seller will, and the Owners will carry on its business cause the Seller to, conduct the Business diligently, in the ordinary course and in substantially the same manner as heretofore conducted andthe Business was previously conducted, and will not make or institute any unusual or novel purchase, sale, lease, change in management, accounting policy or operation that will vary materially from those methods used by it during the 12-month period ending on the date of this Agreement. Without limiting the foregoing, from the date hereof until the Closing Date, as it relates to the extent consistent with such businessBusiness and its operation, use all reasonable best efforts consistent with past practice the Seller will, and policies to preserve intact its present business organization, keep available the services Owners will cause the Seller to: (i) not change the compensation of any of its present officers, consultants and employees and preserve its relationships with customersnor, suppliers and distributors and others having business dealings with it. INT'X.xxx will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxx. The foregoing notwithstanding, INT'X.xxx will not:
(a) other than except in the ordinary course of business consistent with prior practicebusiness, increase any compensation (including, without limitation, any bonuses) payable to any Business Employee or consultant of the Business, not enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,000;
(b) grant any bonusemployment, severance or termination pay to other agreement with any officerof its officers or any Business Employee or consultant of the Business and not enter into, directoramend or adopt any Employee Plan, independent contractor (ii) not enter into, amend or employee terminate any Contract without the prior written consent of INT'X.xxx;
NMHC and the Purchaser, (ciii) not enter into any commitment to borrow money or amend subject to Lien any agreements pursuant of the Assets, (iv) not sell or transfer any of the Assets of the Business or cancel any claim applicable to which any other party is granted support, service, marketing or publishing rights, other than the Business except in the ordinary course of business consistent with prior practiceconduct of the Business, or is granted distribution rights (v) not dispose of any type or scope with respect to any products material assets of INT'X.xxx;
(d) other than in the Business outside the ordinary course of business consistent with prior practicebusiness, or dispose of any membership interests (or securities exchangeable for its membership interests), or declare or pay any dividend or make any distribution in respect of any membership interests of the Seller or enter into any commitments or terminate agreements with respect thereto except as mutually agreed by the Purchaser and the Seller, (vi) perform all material obligations under Licenses, the Assumed Contracts and other documents relating to or affecting the Business, all in the same manner as heretofore performed, (vii) use its best efforts to maintain and preserve the Business, the goodwill and relationships with the Business Employees, customers, suppliers and others having a business relationship with the Business, and maintain all Licenses requisite to the conduct of the Business as now conducted, (viii) maintain in working condition all equipment and other personal property that are Assets, reasonable wear and tear excepted, (ix) comply with all Laws and Governmental Orders applicable to the Business (x) not enter into any contractslicense, arrangementstechnology development or technology transfer agreement with any person or entity (other than NMHC or the Purchaser) which might have a material adverse affect on the Business, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments(xi) not enter into negotiations with, or commitmentssolicit offers from, any party, directly or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxx;
(e) commence a lawsuit other than: (i) indirectly, for the routine collection sale of billsall or substantially all of the Business or the assets at the Business, (iixii) in such cases where INT'X.xxx in good faith determines that failure vote the membership interests held or controlled by an Owner to commence suit would result in a material impairment of a valuable aspect of INT'X.xxx's business PROVIDED THAT INT'X.xxx consults with Parent prior to filing such suitapprove this Agreement, or (iii) for a breach of this the Ancillary Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxx's products or services in a manner adverse to INT'X.xxx;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated hereby;
hereby and thereby, and (hxiii) not take any action or omit to take any action which act or omission would make result in the inaccuracy of any representation of its representations and warranties set forth herein if such representations or warranty in this Agreement untrue or incorrect, as if warranties were to be made as immediately after the occurrence of such time; or
(i) agree in writing act or otherwise to take any of the foregoing actionsomission.
Appears in 1 contract
Samples: Asset Purchase Agreement (National Medical Health Card Systems Inc)
Conduct of Business in Ordinary Course. INT'X.xxx From and after the Effective Date and prior to the Closing Date, the Company will not and the Sellers will not cause the Company to take any actions inconsistent with Section 3.24 or which will lead to a Material Adverse Effect occurring. With the exception of the provisions set forth in this Agreement and the transaction contemplated herein, the Company will carry on its (and the Sellers shall cause the Company to carry on) their business in the ordinary course in substantially the same manner as heretofore conducted and, to the Initialled by Sellers ____ 32 Initialled by Purchaser __ Final extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its their respective present business organization, keep available the services of its their respective present officers, consultants and employees and preserve its their relationships with customers, suppliers and distributors and others having business dealings with itthem. INT'X.xxx will The Sellers shall cause the officers of the Company to confer on a regular and frequent basis at such times as the Purchaser may reasonably request with representatives of Parent the Purchaser to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxthe Company. The foregoing notwithstandingNothwithstanding the foregoing, INT'X.xxx the Sellers and the Company may not and will not:not without the prior written consent of the Purchaser (which shall not be unreasonably withheld):
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,00025,000;
(b) grant any bonusother than in the ordinary course of business consistent with prior practice, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxx;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxx;
(dc) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner an adverse to INT'X.xxx;manner; or
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxx's business PROVIDED THAT INT'X.xxx consults with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(fd) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxx's products or services third parties in a manner adverse to INT'X.xxx;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated hereby;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time; or
(i) agree in writing or otherwise to take any of the foregoing actionsCompany.
Appears in 1 contract
Conduct of Business in Ordinary Course. INT'X.xxx Calogic will carry on its -------------------------------------- business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx Calogic will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxCalogic. The foregoing notwithstanding, INT'X.xxx Calogic will not:not except as consented to in writing by Parent (such consent not to be unreasonably withheld):
(a) other than in the ordinary course of business consistent with prior practicebusiness, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,000;
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxxCalogic except as set forth in Section 3.8 of the Calogic Disclosure Schedule;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxCalogic, other than in the ordinary course of business;
(d) other than in the ordinary course of business consistent with prior practicebusiness, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxCalogic;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx Calogic in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxCalogic's business PROVIDED THAT INT'X.xxx business; provided, that Calogic consults with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxCalogic's products or services in a manner adverse to INT'X.xxxCalogic;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Calogic Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated herebysecurities;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time;
(i) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; or
(ij) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Del Arroz Manuel)
Conduct of Business in Ordinary Course. INT'X.xxx Natchez will carry on its business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx will Natchez shall cause its officers to confer on a regular and frequent basis at such times as Parent may reasonably request with representatives of Parent to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxNatchez. The foregoing notwithstanding, INT'X.xxx Natchez will notnot without the prior written consent of Parent:
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,00025,000;
(b) hire or fire any employee (as to which Parent's consent will not be unreasonably withheld), or grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxxNatchez;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxNatchez;
(d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxNatchez;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx Natchez in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxNatchez's business PROVIDED THAT INT'X.xxx provided that Natchez consults with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxNatchez's products or services in a manner adverse to INT'X.xxxNatchez;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Natchez Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated herebysecurities;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time; or
(i) agree in writing or otherwise to take any of the foregoing actions; or
(i) other than in the ordinary course of business consistent with prior practice, make any change any election in respect of Taxes, adopt or change any method of accounting or accounting practice in respect of Taxes, enter into any closing agreement, settle any claim in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Tsi International Software LTD)
Conduct of Business in Ordinary Course. INT'X.xxx From and after the date hereof until the Closing, the Company will carry on its business Business in the ordinary course and in substantially the same manner as heretofore conducted andsuch Business has previously been carried out, to and will not make or institute any material purchase, sale, lease, management, accounting policy or operation that will vary materially from those methods used by it during the extent consistent with such business12-month period ending on the date of this Agreement. Without limiting the foregoing, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organizationfrom the date hereof until the Closing Date, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx Company will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxx. The foregoing notwithstanding, INT'X.xxx will not:
(a) other not increase any compensation payable to any employees or consultants (except in the ordinary course of business); (b) not create any material obligation or Liability (absolute or contingent) except Liabilities incurred in the ordinary course of business and obligations under contracts entered in the ordinary course of business; (c) not enter into, amend or terminate any material contract, agreement, permit or lease without the prior written consent of Kellxxxxx xxxer than in the ordinary course of business consistent with prior practice, business; (d) not amend the Certificate of Incorporation or the By-laws of the Company; (e) not enter into any material commitment to borrow money or transactionmortgage, including but not limited pledge, or subject to Lien, any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,000;
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxx;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than properties except in the ordinary course of business consistent with prior practice, and not exceeding $1,000,000; (f) not sell or is granted distribution rights transfer any of the Assets or cancel any type debt or scope with respect to any products of INT'X.xxx;
(d) other than claim except in the ordinary course of business consistent with prior practice, enter into conduct of the Business or terminate any as contemplated hereunder; (g) keep in full force and effect all insurance relating to the Business comparable in amount and scope of coverage to that now maintained; (h) perform in all material respects all its obligations under contracts, arrangementsleases and documents relating to or affecting conduct of the Business, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change all in any material respect the terms thereof in a same manner adverse to INT'X.xxx;
(e) commence a lawsuit other than: as heretofore performed; (i) for use reasonable efforts to maintain and preserve the routine collection of billsAssets, (ii) in such cases where INT'X.xxx in the Business, the good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxx's business PROVIDED THAT INT'X.xxx consults will and relationships with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxx's products or services in a manner adverse to INT'X.xxx;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated hereby;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time; or
(i) agree in writing or otherwise to take any of the foregoing actions.its present customers,
Appears in 1 contract
Samples: Asset Purchase Agreement (Kellstrom Industries Inc)
Conduct of Business in Ordinary Course. INT'X.xxx Seller will carry on its business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable its best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees employees, except as provided herein, and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx Seller will confer on a regular and frequent basis with representatives of Parent Bridgeline to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxSeller. The foregoing notwithstanding, INT'X.xxx Seller will not, without the prior consent of Bridgeline:
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,000);
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxx;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing other rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxSeller;
(dc) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxSeller;
(ed) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx Seller in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxSeller's business PROVIDED THAT INT'X.xxx consults with Parent prior to filing such suitbusiness, or (iii) for a breach of this Agreement or any agreement related hereto;
(fe) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxSeller's products or services in a manner adverse to INT'X.xxxSeller;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated hereby;
(hf) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time;
(g) take any action that would or would reasonably be expected to prevent, impair or materially delay the ability of Bridgeline or Seller to consummate the transactions contemplated by this Agreement; or
(ih) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Conduct of Business in Ordinary Course. INT'X.xxx From and after the Effective Date and prior to the Closing Date, the Company will not and the Sellers will not cause the Company to take any actions inconsistent with Section 3.23 or which will lead to a Material Adverse Effect occurring. With the exception of the provisions set forth in this Agreement and the transaction contemplated herein, the Company will carry on its (and the Sellers shall cause the Company to carry on) their business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its their respective present business organization, keep available the services of its their respective present officers, consultants and employees and preserve its their relationships with customers, suppliers and distributors and others having business dealings with itthem. INT'X.xxx will The Sellers shall cause the officers of the Company to confer on a regular and frequent basis at such times as the Purchaser may reasonably request with representatives of Parent the Purchaser to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxthe Company. The foregoing notwithstandingNotwithstanding the foregoing, INT'X.xxx the Sellers and the Company may not and will not:not without the prior written consent of the Purchaser (which shall not be unreasonably withheld):
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,00025,000;
(b) grant any bonusother than in the ordinary course of business consistent with prior practice, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxx;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxx;
(dc) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner an adverse to INT'X.xxx;manner; or
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxx's business PROVIDED THAT INT'X.xxx consults with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(fd) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxx's products or services third parties in a manner adverse to INT'X.xxx;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated hereby;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time; or
(i) agree in writing or otherwise to take any of the foregoing actionsCompany.
Appears in 1 contract
Samples: Stock Purchase Agreement (CDC Corp)
Conduct of Business in Ordinary Course. INT'X.xxx NextPoint will carry on its business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all commercially reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx NextPoint will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxNextPoint. The foregoing notwithstanding, INT'X.xxx NextPoint will not:
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,00010,000;
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxxNextPoint, other than pursuant to arrangements already in place and disclosed in writing to Parent;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxNextPoint;
(d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxNextPoint;
(e) commence a lawsuit other than: (i) for the routine collection of bills, or (ii) in such cases where INT'X.xxx NextPoint in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxNextPoint's business PROVIDED THAT INT'X.xxx NextPoint consults with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) except in the ordinary course of business, modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxNextPoint's products or services in a manner materially adverse to INT'X.xxxNextPoint;
(g) make any loan, advance or capital contributions to or investment in any Person;
(h) create or assume any Lien on any asset, other than Liens that do not in the aggregate materially detract from the value of such assets or materially impair the use thereof in the operation of the business of NextPoint;
(i) enter into any transaction with any of NextPoint's respective stockholders or any affiliates of NextPoint (other than pursuant to arrangements with stockholders that are in effect on the date of this Agreement and as to stockholders who are employees of NextPoint, other than in their capacities as such employees), other than in the ordinary course of, and pursuant to the reasonable requirements of, their respective businesses and upon terms that are no less favorable to NextPoint than NextPoint could reasonably obtain in a comparable transaction with a person who was not such a stockholder or an affiliate of NextPoint (other than as contemplated by this Agreement);
(j) accelerate the vesting or otherwise modify any INT'X.xxx NextPoint Option, restricted stock or other outstanding equity rights or other securities (other than any acceleration or modification that results from the execution and performance of as required by this Agreement or any of the transactions contemplated herebyAgreement);
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time; or
(ik) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Netscout Systems Inc)
Conduct of Business in Ordinary Course. INT'X.xxx The Members and the Company will carry on its business conduct the Business diligently, in the ordinary course and in substantially the same manner as heretofore conducted andthe Business was previously conducted, and will not make or institute any unusual or novel purchase, sale, lease, change in management, accounting policy or operation that will vary materially from those methods used by it during the 12-month period ending on the date of this Agreement; provided however, the Company shall not incur any liability or engage in a transaction with an Interested Party without the written consent of Excel. Without limiting the foregoing, from the date hereof until the Closing Date, with respect to the extent consistent Company and its Subsidiaries, the Company and the Members will: (i) not change the compensation payable to any Person, not enter into any employment, severance or other agreement with such businessany Person or enter into or adopt any Employee Benefit Plan, use all reasonable best efforts consistent with past practice and policies (ii) not enter into, amend or terminate any Contract without the prior written consent of Excel, (iii) not enter into any commitment to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx will confer on a regular and frequent basis with representatives of Parent borrow money or subject to report operational matters of a material nature and to report the general status Lien any of the ongoing operations assets of the business Company and its Subsidiaries, (iv) not sell or transfer any of INT'X.xxx. The foregoing notwithstanding, INT'X.xxx will not:
(a) other than the assets or cancel any claim except in the ordinary course of business consistent with prior practiceconduct of the Business, enter into (v) not dispose of any material commitment or transaction, including but not limited to any purchase assets of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,000;
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxx;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the Company and its Subsidiaries outside the ordinary course of business consistent with prior practicebusiness, or is granted make any distribution rights to its equity owners or enter into any commitments or agreements with respect thereto except as agreed by Excel, (vi) perform all material obligations under Licenses, the Contracts and other documents relating to or affecting the Business, all in the same manner as heretofore performed, (vii) use its best efforts to maintain and preserve the Business, the goodwill and relationships with the Company's and its Subsidiaries' licensors, customers, suppliers and others having a business relationship with the Company, and maintain all Licenses requisite to the conduct of the Business as now conducted, (viii) maintain in working condition all equipment and other personal property that are assets, reasonable wear and tear excepted, (ix) comply with all Laws and Governmental Orders (x) not enter into any license, technology development or technology transfer agreement with any person or entity (other than Excel) which might have a Material Adverse Effect, (xi) not enter into negotiations with, or solicit offers from, any party, directly or indirectly, for the sale of all or substantially all of the Securities or the assets of the Company, (xii) not take any action or omit to take any action which act or omission would result in the inaccuracy of any type of its representations and warranties set forth herein if such representations or scope with respect warranties were to any products be made immediately after the occurrence of INT'X.xxx;
such act or omission; (dxiii) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change the Company's and its Subsidiaries' Organizational Documents; (xiv) (x) declare, set aside, make or pay any dividend or other distribution to their respective Members, or (y) redeem, purchase or otherwise acquire, directly or indirectly, any of its Company Membership Interests, or (z) authorize or effect any reverse stock split, split-up or any recapitalization or make any changes in the amount of their authorized or issued Company Membership Interests, or (xv) otherwise engage in any material respect the terms thereof in a manner adverse to INT'X.xxx;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx in good faith determines activity that failure to commence suit would result in a material impairment violation of a valuable aspect of INT'X.xxx's business PROVIDED THAT INT'X.xxx consults with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxx's products or services in a manner adverse to INT'X.xxx;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated hereby;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time; or
(i) agree in writing or otherwise to take any of the foregoing actionsSection 3.06 above.
Appears in 1 contract
Conduct of Business in Ordinary Course. INT'X.xxx Diamond will carry on its business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx Diamond will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxDiamond. The foregoing notwithstanding, INT'X.xxx Diamond will not:
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,00035,000;
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxxDiamond;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxDiamond;
(d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxDiamond;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx Diamond in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxDiamond's business PROVIDED THAT INT'X.xxx provided that Diamond consults with Parent prior to filing of any such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxDiamond's products or services in a manner adverse to INT'X.xxxDiamond;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Diamond Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated herebysecurities;
(h) take any action which would make any representation or warranty cause Diamond to be unable to meet the conditions set forth in this Agreement untrue or incorrect, as if made as of such time; orSection 8.2(a);
(i) agree in writing or otherwise to take any of the foregoing actions; or
(j) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Data Dimensions Inc)
Conduct of Business in Ordinary Course. INT'X.xxx Diamond will carry on its -------------------------------------- business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx Diamond will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxDiamond. The foregoing notwithstanding, INT'X.xxx Diamond will not:
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,00035,000;
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxxDiamond;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxDiamond;
(d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxDiamond;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx Diamond in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxDiamond's business PROVIDED THAT INT'X.xxx provided that Diamond consults with Parent prior to filing of any such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxDiamond's products or services in a manner adverse to INT'X.xxxDiamond;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Diamond Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated herebysecurities;
(h) take any action which would make any representation or warranty cause Diamond to be unable to meet the conditions set forth in this Agreement untrue or incorrect, as if made as of such time; orSection 8.2(a);
(i) agree in writing or otherwise to take any of the foregoing actions; or
(j) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Lionbridge Technologies Inc /De/)
Conduct of Business in Ordinary Course. INT'X.xxx From and after the date hereof until the Closing, the Company will carry on its business diligently, in the ordinary course and in substantially the same manner as heretofore conducted andsuch business has previously been carried out, and will not make or institute any material purchase, sale, lease, management, accounting policy or operation that will vary materially from those methods used by it during the 12 month period ending on the date of this Agreement. Without limiting the foregoing, from the date hereof until the Closing Date, the Company will (i) not increase any compensation payable to any employees or consultants (except in the extent consistent with such ordinary course of business); (ii) not create any material obligation or liability (absolute or contingent) except liabilities incurred in the ordinary course of business and obligations under contracts entered in the ordinary course of business; (iii) not enter into, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organizationamend or terminate any material contract, keep available agreement, permit or lease without the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report the general status prior written consent of the ongoing operations of the business of INT'X.xxx. The foregoing notwithstanding, INT'X.xxx will not:
(a) Purchaser other than in the ordinary course of business consistent with prior practice, business; (iv) not amend the certificate of limited partnership or agreement of limited partnership of the Company; (v) not enter into any commitment to borrow money or mortgage, pledge, or subject to Lien, any assets or properties except in the ordinary course of business or as contemplated hereunder; (vi) not sell or transfer any of the Assets or cancel any debt or claim except in the ordinary course of conduct of business or as contemplated hereunder; (vii) keep in full force and effect all insurance relating to the Business comparable in amount and scope of coverage to that now maintained; (viii) perform in all material commitment respects all its obligations under contracts, leases and documents relating to or transactionaffecting conduct of the Business, including but all in the same manner as heretofore performed; (ix) use its best efforts to maintain and preserve the Assets, the Business, the good will and relationships with its present officers, employees, suppliers, staff and others having a business relationship with it, and maintain all material licenses and permits requisite to the conduct of the Business; (x) not limited commit to any capital expenditure or purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,000;
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxx;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, Inventory other than in the ordinary course of business consistent business; (xi) maintain in working condition all buildings, equipment, fixtures and other property, reasonable wear and tear excepted; (xii) duly and timely file all tax and information returns with prior practicethe appropriate Federal, state, local and foreign governmental agencies and promptly pay when due all taxes, excise taxes, assessments, charges, penalties and interest lawfully levied or is granted distribution rights assessed upon it or any of its property; (xiii) make no material change in its existing banking and safe deposit arrangements or grant any type or scope with respect to any products powers of INT'X.xxx;
(d) other than attorney except in the ordinary course of business consistent with prior practicebusiness; (xiv) not distribute, enter into spend, commit or terminate otherwise transfer any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instrumentsinterest in the funds paid to the Company except in the ordinary course of business; (xv) issue or split-up, or commitmentsgrant any option or other right to acquire, any partnership or amend other interest or otherwise change in any material respect security of the terms thereof in a manner adverse to INT'X.xxx;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxx's business PROVIDED THAT INT'X.xxx consults with Parent prior to filing such suit, Company; or (iiixvi) make any declaration, set aside for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts payment or other terms and conditions with dealers, distributors and other resellers distribution in respect of INT'X.xxx's products or services in a manner adverse to INT'X.xxx;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated hereby;
(h) take any action which would partnership interests of the Company, or make any representation direct or warranty in this Agreement untrue indirect redemption, purchase or incorrect, as if made as other acquisition of such time; or
(i) agree in writing or otherwise to take any partnership interest of the foregoing actionsCompany. The Company will promptly report to the Purchaser any material proposed capital expenditure or purchase of Inventory.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kellstrom Industries Inc)
Conduct of Business in Ordinary Course. INT'X.xxx Calogic will carry on its business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx Calogic will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxCalogic. The foregoing notwithstanding, INT'X.xxx Calogic will not:not except as consented to in writing by Parent (such consent not to be unreasonably withheld):
(a) other than in the ordinary course of business consistent with prior practicebusiness, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,000;
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxxCalogic except as set forth in Section 3.8 of the Calogic Disclosure Schedule;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxCalogic, other than in the ordinary course of business;
(d) other than in the ordinary course of business consistent with prior practicebusiness, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxCalogic;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx Calogic in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxCalogic's business PROVIDED THAT INT'X.xxx business; provided, that Calogic consults with Parent prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxCalogic's products or services in a manner adverse to INT'X.xxxCalogic;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Calogic Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated herebysecurities;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time;
(i) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; or
(ij) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Conduct of Business in Ordinary Course. INT'X.xxx Except as approved in -------------------------------------- writing by Cambridge, Excell will carry on its business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx Excell will confer on a regular and frequent basis with representatives of Parent Cambridge to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxExcell. The foregoing notwithstanding, INT'X.xxx Excell will not, except as approved in writing by Cambridge:
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,00025,000;
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxxExcell, except pursuant to the Excell Phantom Stock Plan, as approved by Cambridge;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxExcell;
(d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxExcell;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx Excell in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxExcell's business PROVIDED THAT INT'X.xxx provided that Excell consults with Parent Cambridge prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxExcell's products or services in a manner adverse to INT'X.xxxExcell;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Excell Option, restricted stock stock, or other outstanding rights or other securities securities, other than any acceleration or modification that results from changes to the execution and performance of this Agreement or any of the transactions contemplated herebyExcell Phantom Stock Plan, as approved by Cambridge;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time; or
(i) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Cambridge Technology Partners Massachusetts Inc)
Conduct of Business in Ordinary Course. INT'X.xxx Onex will carry on its -------------------------------------- business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx Onex will confer on a regular and frequent basis with representatives of Parent TranSwitch to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxOnex. The foregoing notwithstanding, INT'X.xxx Onex will not:
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,000;
(b) grant any bonus, severance severance, restricted stock, stock option or other stock based incentive or termination pay to any officer, director, independent contractor or employee of INT'X.xxxOnex;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxOnex;
(d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitmentscommitments with any customers of Onex, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxOnex without the prior written consent of TranSwitch; and in all other cases not involving customers of Onex, Onex shall not take any such action other than in the ordinary course of business consistent with prior practice;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx Onex in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxOnex's business PROVIDED THAT INT'X.xxx business; provided, that Onex consults with Parent TranSwitch prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxOnex's products or services in a manner adverse to INT'X.xxxOnex;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Outstanding Onex Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated herebysecurities;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time;
(i) make any material Tax election, except with the written approval of TranSwitch, which approval shall not be unreasonably withheld, conditioned or delayed; or
(ij) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Transwitch Corp /De)
Conduct of Business in Ordinary Course. INT'X.xxx Alacrity will carry on its -------------------------------------- business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx Alacrity will confer on a regular and frequent basis with representatives of Parent TranSwitch to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxAlacrity. The foregoing notwithstanding, INT'X.xxx Alacrity will not:
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,00025,000;
(b) grant or pay any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxxAlacrity;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxAlacrity;
(d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxAlacrity;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx Alacrity in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxAlacrity's business PROVIDED THAT INT'X.xxx business; provided, that Alacrity consults with Parent TranSwitch prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxAlacrity's products or services in a manner adverse to INT'X.xxxAlacrity;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Alacrity Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated herebysecurities;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time;
(i) make any Tax election, except with the written approval of TranSwitch, which approval shall not be unreasonably withheld; or
(ij) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Transwitch Corp /De)
Conduct of Business in Ordinary Course. INT'X.xxx DA will carry on its business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its present business organization, keep available the services of its present officers, consultants and employees and preserve its relationships with customers, suppliers and distributors and others having business dealings with it. INT'X.xxx DA will confer on a regular and frequent basis with representatives of Parent Delano to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxDA. The foregoing notwithstanding, INT'X.xxx DA will not:
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,000;
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxxDA;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxDA;
(d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner materially adverse to INT'X.xxxDA;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx DA in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxxDA's business PROVIDED THAT INT'X.xxx provided that DA consults with Parent Delano prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxxDA's products or services in a manner adverse to INT'X.xxxDA;
(g) accelerate the vesting or otherwise modify any INT'X.xxx DA Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from securities, except as otherwise provided in the execution and performance of this Agreement or any of Digital Archaeology Corporation 1998 Stock Option Plan (the transactions contemplated hereby"Stock Option Plan");
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrectincorrect in any material respect, as if made as of such time; or
(i) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Conduct of Business in Ordinary Course. INT'X.xxx Xyz will carry on its business the Business in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable best efforts consistent with past practice and policies to preserve intact its the present business organizationorganization of the Business, keep available the services of its the present officers, consultants and employees of the Business and preserve its relationships with customers, suppliers and distributors and others having business dealings with itit in connection with the Business. INT'X.xxx Xyz will confer on a regular and frequent basis with representatives of Parent the Buyer to report operational matters of a material nature and to report the general status of the ongoing operations of the business of INT'X.xxxBusiness. The foregoing notwithstanding, INT'X.xxx Xyz will notnot do any of the following with respect to the Business or which may affect the Business:
(a) other than in the ordinary course of business consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price in excess of $50,000[●];
(b) grant any bonus, severance or termination pay to any officer, director, independent contractor or employee of INT'X.xxxthe Business;
(c) enter into or amend any agreements pursuant to which any other party is granted support, service, marketing or publishing rights, other than in the ordinary course of business consistent with prior practice, or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxXyz;
(d) other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse to INT'X.xxxthe Business;
(e) commence a lawsuit other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx Xyz in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxx's business PROVIDED THAT INT'X.xxx the Business provided that Xyz consults with Parent the Buyer prior to filing such suit, or (iii) for a breach of this Agreement or any agreement related hereto;
(f) make or change any material Tax election, file an amended Tax Return, enter into any closing agreement, compromise or file an appeal with respect to any Tax claim or assessment, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment;
(g) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxx's products or services of the Business in a manner adverse to INT'X.xxxthe Business;
(gh) accelerate the vesting or otherwise modify any INT'X.xxx Xyz Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated herebysecurities;
(hi) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time; or
(ij) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conduct of Business in Ordinary Course. INT'X.xxx will Until the Closing, Seller shall carry on its business diligently and substantially in the manner as heretofore conducted, and Seller shall not make or initiate any unusual or novel methods of purchase, sale, management, accounting or operation, or make any adjustments in the pricing of its products or services not consistent with its past business practices. Seller shall not enter into any contract or commitment to engage in any transaction not in the ordinary course in substantially the same manner as heretofore conducted and, to the extent of its business or not consistent with such business, its past business practices. Seller shall use all reasonable its best efforts consistent with past practice and policies to preserve intact for Purchaser its present business organization, keep available the services of its including present officersemployees, consultants and employees and preserve its relationships with customerssuppliers, suppliers and distributors customers and others having business dealings relations with itSeller. INT'X.xxx will confer on a regular and frequent basis with representatives of Parent to report operational matters of a material nature and to report Without limiting the general status scope of the ongoing operations of the business of INT'X.xxx. The foregoing notwithstandingforegoing, INT'X.xxx will notSeller shall:
(a) Use, preserve and maintain its properties and assets on a basis consistent with past practices;
(b) Maintain all insurance covering Seller and its business, properties or assets in effect as of the date hereof;
(c) Pay all debts and obligations incurred by Seller in the operation of its business in accordance with its customary practices as the same become due and payable, except to the extent Seller is contesting such debts or obligations in good faith by appropriate proceedings and has established appropriate reserves therefor; and
(d) Maintain its books, accounts and records in the usual manner and on a basis consistent with past practice. Furthermore, and without limiting the scope of the foregoing, Seller shall not:
(e) Make any capital expenditures, or commitments with respect thereto (including, without limitation, capital leases), other than capital expenditures or commitments not in excess of Ten Thousand Dollars ($10,000.00) in the aggregate;
(f) Enter into any agreement or agreements for the sale of assets or properties, other than agreements for the sale of inventory or software licenses made in the ordinary course of business on a basis consistent with prior practice, enter into any material commitment or transaction, including but not limited to any purchase of assets (other than raw materials, supplies or cash equivalents) for a purchase price past practice and approved by Purchaser in excess of $50,000writing;
(bg) grant Enter into or modify any employment agreements with employees, agents and/or representatives;
(h) Except as contemplated by Section 6.6, hereof, adopt or amend or increase compensation or benefits payable under, or take any actions which might result in adverse tax or other consequences with respect to, any bonus, severance profit sharing, compensation, stock option, pension, retirement, deferred compensation, collective bargaining agreement, or termination pay to other plan, agreement, trust, fund or arrangement for the benefit of any officer, director, independent contractor employee or employee class of INT'X.xxxemployees;
(ci) enter into Commit any act or amend omit to do any agreements pursuant act, or permit any act or omission to act, which will or may cause a material breach of any other party is granted support, service, marketing Seller Contract;
(j) Change its prices or publishing rights, credit policies;
(k) Incur any indebtedness other than indebtedness for accounts payable to trade creditors incurred in the ordinary course of business consistent in connection with prior practice, obtaining materials or is granted distribution rights of any type or scope with respect to any products of INT'X.xxxservices;
(dl) Authorize or issue any capital stock or securities convertible into capital stock, including without limitation, options, warrants, convertible debt or other than in the ordinary course of business consistent with prior practice, enter into or terminate any contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments, or commitments, or amend or otherwise change in any material respect the terms thereof in a manner adverse rights to INT'X.xxx;acquire capital stock; and
(em) commence a lawsuit Except as contemplated by Section 10.9, hereof, amend its Articles of Incorporation, other than: (i) for the routine collection of bills, (ii) in such cases where INT'X.xxx in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of INT'X.xxx's business PROVIDED THAT INT'X.xxx consults with Parent prior to filing such suit, charter documents or (iii) for a breach of this Agreement or any agreement related hereto;
(f) modify in any material respect existing discounts or other terms and conditions with dealers, distributors and other resellers of INT'X.xxx's products or services in a manner adverse to INT'X.xxx;
(g) accelerate the vesting or otherwise modify any INT'X.xxx Option, restricted stock or other outstanding rights or other securities other than any acceleration or modification that results from the execution and performance of this Agreement or any of the transactions contemplated hereby;
(h) take any action which would make any representation or warranty in this Agreement untrue or incorrect, as if made as of such time; or
(i) agree in writing or otherwise to take any of the foregoing actionsBy-Laws.
Appears in 1 contract
Samples: Asset Purchase Agreement (Advantage Learning Systems Inc)
