Common use of Conduct of Business; Notification of Certain Matters Clause in Contracts

Conduct of Business; Notification of Certain Matters. Acquisition Co. covenants and agrees as to itself and its subsidiaries, except as specifically permitted by any other provision of this Agreement, to conduct its business during the period from the date of this Agreement to the Closing Date only in the ordinary course and in a manner consistent with past practice and in compliance with applicable laws, and Acquisition Co. shall preserve intact Acquisition Co. and its subsidiaries business organizations, maintain and preserve their assets, undertake Acquisition Co. and its subsidiaries reasonable commercial efforts to keep available the services of the respective current officers, employees and consultants of Acquisition Co. and its subsidiaries and preserve the present goodwill of Acquisition Co. and its subsidiaries and their relationships with customers, suppliers and other persons with whom it has business relations. In addition to the foregoing, except as specifically permitted by any other provisions in this Agreement, Acquisition Co. (as to itself and its subsidiaries) shall not between the date hereof and the Closing Date, directly or indirectly, do any of the following without the prior written consent of Company and Parent: (i) amend its certificate of incorporation or by-laws in any way adverse to Company or Parent or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of Acquisition Co. or its subsidiaries; (ii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (iii) change any accounting principles used by Acquisition Co., unless required by the Financial Accounting Standards Board; (iv) knowingly act in a manner intended to materially delay the consummation of the Merger or result in any of the conditions to the Merger set forth in Article 5 being satisfied; or (v) authorize any of, or commit or agree to take any of the foregoing actions. Acquisition Co. shall give prompt notice to Company of (i) the occurrence, or nonoccurrence, or any event the occurrence, or nonoccurrence, of which would be likely to cause any representation made by Acquisition Co. contained in this Agreement to be untrue or inaccurate in any material respect at or prior to the Closing Date and (ii) any material failure of Acquisition Co. to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by Acquisition Co. hereunder; provided, however, that the delivery of any notice pursuant to this Subsection 4.9(b) shall not limit or otherwise affect the remedies available hereunder to Company.

Conduct of Business; Notification of Certain Matters. Acquisition Co. (a) Each Seller covenants and agrees as to itself and its subsidiariesSubsidiaries, except as specifically permitted by any other provision of this Agreement, Agreement to conduct its business the Business during the period from the date of this Agreement to the Closing Date only in the ordinary course and in a manner consistent with past practice and in material compliance with applicable lawsApplicable Law, and Acquisition Co. shall to preserve intact Acquisition Co. and its subsidiaries the Asset Selling Entities’ business organizations, maintain and preserve their assetsthe Purchased Assets, undertake Acquisition Co. and its subsidiaries reasonable commercial best efforts to keep available the services of the respective current officers, employees and consultants of Acquisition Co. and its subsidiaries the Asset Selling Entities and preserve the present goodwill of Acquisition Co. and its subsidiaries the Asset Selling Entities and their relationships with customers, suppliers and other persons Persons with whom it has they have business relationsrelations that relate to the Business. In addition to the foregoing, except as specifically permitted by any other provisions in this Agreement, Acquisition Co. (as to itself CellStar and its subsidiaries) Subsidiaries shall not not, between the date hereof and the Closing Date, directly or indirectly, do any of the following without the prior written consent of Company and ParentBuyer: (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, its or any Subsidiary’s capital stock (except for dividends paid to CellStar or any Subsidiary thereof by Communicacion Inalambrica Inteligente, S.A. de C.V.), split, combine or reclassify any of its or any Subsidiary’s capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its or any Subsidiary’s capital stock; or purchase, redeem or otherwise acquire any shares of its or any Subsidiary’s capital stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; except pursuant to the exercise of existing options in respect of CellStar’s capital stock, authorize for issuance, issue, deliver, sell or agree to commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its or any Subsidiary’s capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities convertible securities or any other securities or equity equivalents (except for the issuance by CellStar of up to 150,000 shares of its common stock, as restricted stock, to its employees); (ii) increase, alter or amend the compensation or fringe benefits of any Transferred Employees except in the ordinary course of business, in accordance with past practice; enter into employment arrangements or arrangements to provide rights or benefits upon a change of control with any such employee or enter into any retention or performance-based bonus or other compensation agreement or any similar agreement with any such employee; or, except as required to comply with Applicable Law, establish, adopt, enter into, amend or terminate any written agreement or other plan, agreement, trust, fund, policy or arrangement for the benefit of any employee; or change the employees listed on Schedule 1.01(a)(iii) (provided, however, that CellStar and its Subsidiaries may substitute employees below the director level with other new employees to be included on said Schedule provided salary, benefits and other costs are reasonably similar in respect thereof); (iii) amend its certificate of incorporation or by-laws in any way adverse to Company or Parent or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of Acquisition Co. any Asset Selling Entity in any way which would adversely impact the transactions contemplated hereby or its subsidiariesthe Business or the Purchased Assets; (iiiv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof, except any such transaction with a Subsidiary of CellStar, so long as such transaction would not in any way adversely impact the transactions contemplated hereby or the Business or the Purchased Assets; or any assets that are material, individually or in the aggregate, to CellStar or its Subsidiaries, except purchases in the ordinary course of business consistent with past practice; (v) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any Purchased Assets, except sales or dispositions in the ordinary course of business consistent with past practice; (vi) incur any Indebtedness or guarantee any such Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of any Asset Selling Entity, guarantee any debt securities of another Person, or enter into any arrangement having the economic effect of any of the foregoing, or amend or modify any terms relating thereto, except for short-term borrowings incurred in the ordinary course of business consistent with past practice; (vii) enter into, amend, modify, renew, replace or terminate any Material Contract (including, without limitation, (a) the Supply Agreement and Technical Service Agreement, except for any successor or subsequent similar agreement or arrangement in respect of Sellers’ Colombia business which is not materially adverse in relation to the Supply Agreement or Technical Service Agreement provided that three (3) business days prior written notice is given to Buyer in respect thereof, and (b) the Kaiser Employment Agreement), and shall not place, amend, modify or terminate any purchase orders in respect of the Asset Selling Entities relating primarily to the Business other than in the ordinary course of business consistent with past practices; (viii) expend funds for capital expenditures in excess of $50,000 in the aggregate in respect of the Asset Selling Entities; (ix) except as set forth on Schedule 5.02(ix), adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (iiix) recognize any labor union (unless legally required to do so) or enter into or amend any collective bargaining agreement in respect of the Asset Selling Entities; (xi) change any accounting principles used by Acquisition Co.principles, unless required by the Financial Accounting Standards Board; (ivxii) [Intentionally omitted]; (xiii) unless compelled by a final non-appealable court order or other binding order of a Governmental Authority, settle or compromise any litigation in which Sellers is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, which payments are individually in an amount in excess of $25,000 and in the aggregate in an amount in excess of $50,000 or waive any material right, except with respect to the SEC Investigation (unless any such action in respect thereof will materially adversely affect the Business, Purchased Assets, Liabilities, obligations, operations, condition (financial or otherwise) or results of operations or the conduct of the Business); (xiv) modify or amend any existing insurance policy, except for a renewal thereof on substantially the same terms and conditions; (xv) except as permitted by Section 5.03 hereof, knowingly act in a manner intended to materially delay the consummation of the Merger or result in any of the conditions to the Merger set forth in Article 5 being satisfiedtransactions contemplated by this Agreement; or (vxvi) authorize any of, or commit or agree to take any of the foregoing actions. Acquisition Co. . (b) CellStar shall give prompt notice to Company Buyer of (i) the occurrence, or nonoccurrence, or any event the occurrence, or nonoccurrence, of which would be likely to cause any representation made by Acquisition Co. contained in this Agreement to be untrue or inaccurate in any material respect at or prior to the Closing Date and (ii) any material failure of Acquisition Co. CellStar or its Subsidiaries to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by Acquisition Co. thereby hereunder; provided, however, that the delivery of any notice pursuant to this Subsection 4.9(bSection 5.02(b) shall not limit or otherwise affect the remedies available hereunder to CompanyBuyer.

Conduct of Business; Notification of Certain Matters. Acquisition Co. (a) Each Seller covenants and agrees as to itself and its subsidiariesSubsidiaries, except as specifically permitted by any other provision of this Agreement, Agreement to conduct its business the Business during the period from the date of this Agreement to the Closing Date only in the ordinary course and in a manner consistent with past practice and in material compliance with applicable lawsApplicable Law, and Acquisition Co. shall to preserve intact Acquisition Co. and its subsidiaries the Asset Selling Entities' business organizations, maintain and preserve their assetsthe Purchased Assets, undertake Acquisition Co. and its subsidiaries reasonable commercial best efforts to keep available the services of the respective current officers, employees and consultants of Acquisition Co. and its subsidiaries the Asset Selling Entities and preserve the present goodwill of Acquisition Co. and its subsidiaries the Asset Selling Entities and their relationships with customers, suppliers and other persons Persons with whom it has they have business relationsrelations that relate to the Business. In addition to the foregoing, except as specifically permitted by any other provisions in this Agreement, Acquisition Co. (as to itself CellStar and its subsidiaries) Subsidiaries shall not not, between the date hereof and the Closing Date, directly or indirectly, do any of the following without the prior written consent of Company and ParentBuyer: (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, its or any Subsidiary's capital stock (except for dividends paid to CellStar or any Subsidiary thereof by Communicacion Inalambrica Inteligente, S.A. de C.V.), split, combine or reclassify any of its or any Subsidiary's capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its or any Subsidiary's capital stock; or purchase, redeem or otherwise acquire any shares of its or any Subsidiary's capital stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; except pursuant to the exercise of existing options in respect of CellStar's capital stock, authorize for issuance, issue, deliver, sell or agree to commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its or any Subsidiary's capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities convertible securities or any other securities or equity equivalents (except for the issuance by CellStar of up to 150,000 shares of its common stock, as restricted stock, to its employees); (ii) increase, alter or amend the compensation or fringe benefits of any Transferred Employees except in the ordinary course of business, in accordance with past practice; enter into employment arrangements or arrangements to provide rights or benefits upon a change of control with any such employee or enter into any retention or performance-based bonus or other compensation agreement or any similar agreement with any such employee; or, except as required to comply with Applicable Law, establish, adopt, enter into, amend or terminate any written agreement or other plan, agreement, trust, fund, policy or arrangement for the benefit of any employee; or change the employees listed on SCHEDULE 1.01(A)(III) (provided, however, that CellStar and its Subsidiaries may substitute employees below the director level with other new employees to be included on said Schedule provided salary, benefits and other costs are reasonably similar in respect thereof); (iii) amend its certificate of incorporation or by-laws in any way adverse to Company or Parent or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of Acquisition Co. any Asset Selling Entity in any way which would adversely impact the transactions contemplated hereby or its subsidiariesthe Business or the Purchased Assets; (iiiv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof, except any such transaction with a Subsidiary of CellStar, so long as such transaction would not in any way adversely impact the transactions contemplated hereby or the Business or the Purchased Assets; or any assets that are material, individually or in the aggregate, to CellStar or its Subsidiaries, except purchases in the ordinary course of business consistent with past practice; (v) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any Purchased Assets, except sales or dispositions in the ordinary course of business consistent with past practice; (vi) incur any Indebtedness or guarantee any such Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of any Asset Selling Entity, guarantee any debt securities of another Person, or enter into any arrangement having the economic effect of any of the foregoing, or amend or modify any terms relating thereto, except for short-term borrowings incurred in the ordinary course of business consistent with past practice; (vii) enter into, amend, modify, renew, replace or terminate any Material Contract (including, without limitation, (a) the Supply Agreement and Technical Service Agreement, except for any successor or subsequent similar agreement or arrangement in respect of Sellers' Colombia business which is not materially adverse in relation to the Supply Agreement or Technical Service Agreement provided that three (3) business days prior written notice is given to Buyer in respect thereof, and (b) the Kaiser Employment Agreement), and shall not place, amend, modify or terminate any purchase orders in respect of the Asset Selling Entities relating primarily to the Business other than in the ordinary course of business consistent with past practices; (viii) expend funds for capital expenditures in excess of $50,000 in the aggregate in respect of the Asset Selling Entities; (ix) except as set forth on SCHEDULE 5.02(IX), adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (iiix) recognize any labor union (unless legally required to do so) or enter into or amend any collective bargaining agreement in respect of the Asset Selling Entities; (xi) change any accounting principles used by Acquisition Co.principles, unless required by the Financial Accounting Standards Board; (ivxii) [Intentionally omitted]; (xiii) unless compelled by a final non-appealable court order or other binding order of a Governmental Authority, settle or compromise any litigation in which Sellers is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, which payments are individually in an amount in excess of $25,000 and in the aggregate in an amount in excess of $50,000 or waive any material right, except with respect to the SEC Investigation (unless any such action in respect thereof will materially adversely affect the Business, Purchased Assets, Liabilities, obligations, operations, condition (financial or otherwise) or results of operations or the conduct of the Business); (xiv) modify or amend any existing insurance policy, except for a renewal thereof on substantially the same terms and conditions; (xv) except as permitted by Section 5.03 hereof, knowingly act in a manner intended to materially delay the consummation of the Merger or result in any of the conditions to the Merger set forth in Article 5 being satisfiedtransactions contemplated by this Agreement; or (vxvi) authorize any of, or commit or agree to take any of the foregoing actions. Acquisition Co. . (b) CellStar shall give prompt notice to Company Buyer of (i) the occurrence, or nonoccurrence, or any event the occurrence, or nonoccurrence, of which would be likely to cause any representation made by Acquisition Co. contained in this Agreement to be untrue or inaccurate in any material respect at or prior to the Closing Date and (ii) any material failure of Acquisition Co. CellStar or its Subsidiaries to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by Acquisition Co. thereby hereunder; provided, however, that the delivery of any notice pursuant to this Subsection 4.9(bSection 5.02(b) shall not limit or otherwise affect the remedies available hereunder to CompanyBuyer.

Conduct of Business; Notification of Certain Matters. Acquisition Co. (a) TDK covenants and agrees as to itself and its subsidiariesSubsidiary, except as specifically permitted by any other provision of this Agreementand Parent covenants and agrees to cause TDK, to conduct its business the Business during the period from the date of this Agreement to the Closing Date only in the ordinary course and in a manner consistent with past practice and in compliance with applicable laws, and Acquisition Co. TDK and Parent shall preserve intact Acquisition Co. TDK’s and its subsidiaries Subsidiary’s business organizations, maintain and preserve their assetsthe Assets, undertake Acquisition Co. and its subsidiaries reasonable commercial efforts to keep available the services of the respective current officers, employees and consultants of Acquisition Co. TDK and its subsidiaries Subsidiary and preserve the present goodwill of Acquisition Co. TDK and its subsidiaries Subsidiary and their relationships with customers, suppliers and other persons with whom it has business relations. In addition to the foregoing, except as specifically permitted by any other provisions in this Agreement, Acquisition Co. TDK (as to itself and its subsidiariesSubsidiary) shall not nor shall Parent authorize TDK, between the date hereof and the Closing Date, directly or indirectly, to do any of the following without the prior written consent of Company and ParentTake-Two: (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of the TDK Common Stock; split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock; or purchase, redeem or otherwise acquire any shares of TDK Common Stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; except pursuant to the exercise of existing options, authorize for issuance, issue, deliver, sell or agree to commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of TDK Common Stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities convertible securities or any other securities or equity equivalents; (ii) increase the compensation or fringe benefits of any of its directors, officers or employees, except for increases in salary or wages of employees of TDK who are not officers of the TDK, in the ordinary course of business, in accordance with past practice; enter into employment arrangements, other than in the ordinary course of business consistent with past practice, with any other employee of the TDK involving compensation in excess of $50,000; or establish, adopt, enter into, amend or terminate any written agreement or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees; (iii) amend its certificate Certificate of incorporation Incorporation or by-laws in any way adverse to Company or Parent Bylaws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of Acquisition Co. or its subsidiariesTDK; (iiiv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or corporation, partnership, joint venture, association or other business organization or division thereof; or any assets that are material, individually or in the aggregate, to TDK except purchases in the ordinary course of business consistent with past practice; (v) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of TDK’s properties or assets, except sales or dispositions in the ordinary course of business consistent with past practice; (vi) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of TDK, guarantee any debt securities of another person, or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice; provided, however, that TDK shall be entitled to receive loans from Parent in such amounts as are in accordance with a cash flow statement (the “Interim Budget”) mutually approved from time to time by Parent, TDK and Take-Two, which amounts shall include all amounts funded by Parent in excess of $30,942,337, whether such amounts were funded prior to or after the date of this Agreement, so long as such amounts are in accordance with the Interim Budget and approved by Take-Two, which approval shall not be unreasonably withheld in connection with general administrative expenses set forth in and in accordance with the Interim Budget (collectively, the “Approved Advances”); (vii) enter into, amend, modify or terminate any agreement, contract or commitment involving a commitment on the part of TDK to purchase, sell, lease or otherwise dispose of assets or require payment by TDK in excess of $50,000; (viii) expend funds for capital expenditures in excess of $50,000; (ix) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (iiix) recognize any labor union (unless legally required to do so) or enter into or amend any collective bargaining agreement; (xi) change any accounting principles used by Acquisition Co.TDK, unless required by the Financial Accounting Standards Board; (ivxii) knowingly act make any tax election or settle or compromise any income tax liability or file any amended Tax Return or file any Tax Return prior to the last day (including extensions) prescribed by law, in a manner intended to materially delay the consummation case of the Merger or result in any of the conditions foregoing, material to the Merger set forth business, financial condition or results of operations of TDK, taken as a whole, except for consolidated, combined or unitary income Tax Returns filed by Parent that include the income and/or operations of TDK; (xiii) settle or compromise any litigation in Article 5 being satisfiedwhich TDK is a defendant (whether or not commenced prior to the date of this Agreement) or settle, pay or compromise any claims not required to be paid, which payments are individually in an amount in excess of $25,000 and in the aggregate in an amount in excess of $50,000; (xiv) modify or amend any existing Insurance Policy; or (vxv) submit for manufacturing, indicate to or agree with any console manufacturer on the intended wholesale price of, or release any console game product; provided that TDK may take any of the foregoing actions to the extent reasonably required to enable it to comply with the delivery requirements of its existing contractual obligations; or (xvi) enter into, amend, modify or terminate any agreement, contract or commitment (whether or not in the ordinary course of business) that provides for restrictions or limitations on the interactive software games that are contemplated to be commercially released by TDK after the date of this Agreement; provided that Take-Two shall not unreasonably withhold its consent to the foregoing; or (xvii) authorize any of, or commit or agree to take any of the foregoing actions. Acquisition Co. . (b) Anything contained in this Section 5.9 to the contrary notwithstanding, except as otherwise provided in the Interim Budget and except for the payment of fees by TDK to ECA and/or Axxxxx, TDK (as to itself and its Subsidiary) shall not nor shall Parent authorize TDK, between the date hereof and the Closing Date, directly or indirectly, without the prior written consent of Take-Two, make any expenditure (whether or not in the ordinary course of business) in excess of $25,000, individually. (c) TDK and Parent shall give prompt notice to Company Take-Two, of (i) the occurrence, or nonoccurrence, or any event the occurrence, or nonoccurrence, of which would be likely to cause any representation made by Acquisition Co. contained in this Agreement to be untrue or inaccurate in any material respect at or prior to the Closing Date and (ii) any material failure of Acquisition Co. TDK and/or Parent to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by Acquisition Co. hereunder; provided, however, that the delivery of any notice pursuant to this Subsection 4.9(b5.9(b) shall not limit or otherwise affect the remedies available hereunder to CompanyTake-Two.