Conduct of Business of the Companies. (a) Except as contemplated or permitted by this Agreement, as required by Applicable Law, as set forth in Section 4.1 of the Disclosure Schedule or as Buyer otherwise consents in advance (which consent shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement to the Closing Date, Seller shall cause the Companies to carry on the Business only in the ordinary course of business consistent with past practice and to use commercially reasonable efforts to maintain the current business relationships and goodwill of the Business with Governmental Entities and GSEs (if any), employees and third Persons. Without limiting the generality of the foregoing, from the date of this Agreement to the Closing Date, except as contemplated or permitted by this Agreement, as required by Applicable Law or as set forth in Section 4.1 of the Disclosure Schedule, Seller shall not permit the Companies, without the prior consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), to:
(i) (A) amend, assign, transfer or waive any rights under any Material Contract, (B) enter into or, other than pursuant to its current terms, extend or terminate any Material Contract outside the ordinary course of business consistent with past practice;
(ii) acquire, dispose of or transfer any asset of the Companies with a value in excess of $100,000 in the aggregate;
(iii) (A) split, combine or reclassify any of the Companies’ outstanding Shares, capital stock or equity securities or issue or authorize the issuance of any other stock or securities in respect of, in lieu of or in substitution for Shares, shares or other interests representing any of the Companies’ outstanding equity interests, capital stock or equity securities, (B) whether directly or indirectly, purchase, redeem or otherwise acquire any shares or other interests representing outstanding Shares, equity interests, capital stock or equity securities of the Companies or any rights, warrants or options to acquire any such shares or interests or (C) amend the Organizational Documents, or adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, of any of the Companies;
(iv) issue, sell, grant, pledge or otherwise encumber any shares or other interests representing the capital stock of or equity interests in the Companies, any other voting securities or interests or any securiti...
Conduct of Business of the Companies. During the period from the date of this Agreement to the Closing Date, the Owners shall cause the Companies to, and the Companies shall, conduct the operations of the Companies only according to their respective Ordinary Course of Business and to use their respective Best Efforts to preserve intact the business organizations of the Companies, keep available the services of managers, officers and employees of each of the Companies and maintain satisfactory relationships with licensors, suppliers, distributors, lessees, clients and others having business relationships with any of the Companies. During the period from the date hereof to and including the Closing Date, the Companies shall, and the Owners shall cause the Companies to, pay all accounts payable and other payables of the Companies in a timely manner consistent with past practices. Notwithstanding the immediately preceding sentence, pending the Closing and except as may be first 28 approved by Purchaser or as is otherwise permitted or required by this Agreement, the Owners will cause the Companies to, and the Companies will, (a) cause their respective Articles of Incorporation, Articles of Organization, By-Laws and/or Operating Agreement and other governing documents to be maintained in their form on the date of this Agreement, (b) maintain the compensation payable or to become payable by any of the Companies to any officer, employee or agent at their levels on the date of this Agreement, except for increases to non-salary store personnel consistent with past practices, and increases to salary personnel consistent with past practices not to exceed the increase in the CPI during the preceding 12-month period, (c) refrain from making any bonus, pension, retirement or insurance payment or arrangement to or with any such persons except those that may have already been accrued, and bonus and insurance payments in the Ordinary Course of Business and consistent with the past practice of such Company, (d) refrain from entering into any contract or commitment except contracts in the Ordinary Course of Business, (e) refrain from paying or declaring any dividends or making any distribution in cash or in property to any of its shareholders or members (other than cash distributions consistent with past practices not exceeding $45,600 per weekly period), (f) refrain from creating, incurring, or assuming any long-term or short-term debt (other than accounts payable incurred in the Ordinary Course of Business cons...
Conduct of Business of the Companies. Except as contemplated by this Agreement, during the period from the date of this Agreement and continuing until the Effective Time or until the termination of this Agreement pursuant to Section 7.1, (i) each Company shall use reasonable efforts promptly to report to the other on the status of operational matters and changes of materiality (subject to the terms of the Confidentiality Agreement) and (ii) each Company and its subsidiaries shall conduct their respective businesses in the ordinary and usual course consistent with past practice and each Company and its subsidiaries shall use reasonable efforts to maintain and preserve intact its business organization, to keep available the services of its officers and employees and to maintain satisfactory relations with licensors, franchisees, licensees, suppliers, contractors, distributors, customers and others having business relationships with it. Without limiting the generality of the foregoing and except as provided in this Agreement, prior to the Effective Time, neither Company nor any of its subsidiaries shall, unless this Agreement is terminated pursuant to Section 7.1, without the prior written consent of the other Company (which consent shall not be unreasonably withheld):
(a) declare, set aside or pay any dividends on or make any other distribution in respect of any of its capital stock except (i) as permitted by subsection (c) below, (ii) dividends or distributions by subsidiaries of 3Dfx to 3Dfx or any subsidiary of 3Dfx, (iii) contributions or distributions by STB to a subsidiary of STB to support the operations of such subsidiary in the ordinary course of business consistent with past practice and (iv) the distributions of funds in satisfaction of STB obligations owed in respect of the STB Options as set forth in Section 5.14;
(b) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance or authorization of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or repurchase, redeem (except in compliance with Section 5.2(n) below) or otherwise acquire any shares of its capital stock;
(c) issue, deliver, pledge, encumber or sell, or authorize or propose the issuance, delivery, pledge, encumbrance or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into, or rights, warrants or options to acquire, any such shares of capital stock or other convertible securit...
Conduct of Business of the Companies. During the period from the date of this Agreement to the Closing Date, Seller shall cause each Company to conduct its business and operations only according to its ordinary and usual course of business as presently conducted and shall, without relieving Purchaser of Customer Risk as provided elsewhere herein, cause each Company to use commercially reasonable efforts to attempt to maintain intact the Business and relations with customers, suppliers and others material to the ongoing conduct of the Business. Pending the Closing Date and except as may be first approved in writing by Purchaser or as is otherwise permitted or required by this Agreement, Seller will not and Seller will not cause or allow any Company to take any action which if it had been taken after the Balance Sheet Date (or, as specified in Section 3.20, September 30, 2010) and prior to the date hereof would have resulted in a misrepresentation or breach of warranty under Article III of this Agreement. Notwithstanding anything to the contrary contained herein, it shall not be a breach of any representation or warranty or covenant herein if Seller or any of the Companies take any action otherwise prohibited by this Section 5.1 without Purchaser’s consent if such action is reasonably determined by Seller to be necessary in the interest of health or safety in circumstances in which Seller could not reasonably obtain Purchaser’s prior approval, or if such action is set forth in Schedule 5.1. The parties acknowledge and agree that the foregoing covenants are subject in each case to Section 5.7 hereof.
Conduct of Business of the Companies. During the period from the date of this Agreement to the Closing Date, each of the Companies shall, and each of the Sellers shall cause each of the Companies to: (i) conduct its operations in the Ordinary Course of Business; (ii) use reasonable best efforts to preserve intact its business organization, keep available the services of its current managers, officers, employees, consultants and agents; (iii) use reasonable best efforts to preserve its goodwill; (iv) cooperate with all reasonable due diligence requests of the Buyer; (v) provide the Buyer with reasonable access to all of its books, records, partners and employees of the Company, including but not limited to plans, surveys, reports and other documents or records that pertain to the Company and its assets, including any appraisals or other valuations; and (vi) promptly advise the Buyer in writing of any Material Adverse Event.
Conduct of Business of the Companies. Except as contemplated by this Agreement or as otherwise set forth on Section 5.1 of the Seller Disclosure Letter, during the period from the date of this Agreement to the Closing Date, the Seller will use its commercially reasonable efforts to cause the Companies and the Company Subsidiaries to conduct their respective operations in all material respects according to its ordinary and usual course of business. The Seller will promptly advise the Buyer in writing of any change in any of the Companies' or the Company Subsidiaries' business or financial condition that is materially adverse to the Companies and the Company Subsidiaries taken as a whole. Without limiting the generality of the foregoing, and except as set forth in Section 5.1 of the Seller Disclosure Letter or otherwise expressly contemplated by this Agreement, prior to the Closing Date, none of the Companies or the Company Subsidiaries will, without the prior written consent of the Buyer:
(a) amend its certificate of incorporation or by-laws, or certificate of formation or limited partnership agreement, as the case may be;
(b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of additional options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock of any class or any partnership interests or any securities convertible into or exercisable for shares of capital stock of any class or any partnership interests;
(c) split, combine or reclassify any shares of its capital stock or any limited partnership interests or redeem or otherwise acquire any shares of its capital stock or any limited partnership interests;
(d) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock or any partnership interests or take any cash or transfer any assets out of the Companies and the Company Subsidiaries, PROVIDED HOWEVER, in any event the Seller may cause any Company or Company Subsidiary to make or pay distributions or dividends: (i) to pay bills or satisfy obligations to third parties (which bills or obligations are currently existing on the date hereof or subsequently incurred in the ordinary course of business or with the approval of management of the Print and Mail Division), on behalf of the Print and Mail Division of the Seller, the Companies or Company Subsidiaries, including with...
Conduct of Business of the Companies. Except as contemplated by this Agreement or as set forth in Schedule 4.1, during the period from the date of execution of this Agreement to the Closing Date, each Parent Company shall, and the Parent Companies and the Sellers shall cause the other Companies to, conduct its business and operations according to its ordinary and usual course of business and consistent with past practices. Without limiting the generality of the foregoing, and except as expressly contemplated in this Agreement, prior to the Closing Date, without the prior written consent of the Purchaser, no Company shall:
(a) create, incur or assume any indebtedness, including, obligations in respect of capital leases, except for short-term borrowings for working capital purposes that may be unsecured or secured;
(b) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person or persons except in the ordinary course of business consistent with past practices not exceeding individually or in the aggregate $25,000; except that any Company may endorse negotiable instruments in the ordinary course of business consistent with past practices;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock or other equity interests, or issue, pledge or sell any shares of its capital stock or other equity interests or other securities convertible into, exchangeable for or conferring the right to acquire shares of its capital stock or other equity interests, or repurchase or redeem or otherwise acquire any shares of its capital stock or other equity interests or such other securities; provided, however, that the Parent Companies shall be permitted to make distributions to the Sellers on the Closing Date pursuant to Section 1.2(b).
(d) (i) increase the rate or terms of compensation payable or to become payable by any Company to its directors, officers or employees listed on Schedule 2.24, or (ii) increase the rate or terms of any, or commit itself to any additional, bonus, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or employees;
(e) amend its Articles of Incorporation or Bylaws (or similar governing documents), merge, consolidate or amalgamate with or into any other Person, subdivide, combine or reclassify any shares of its capital sto...
Conduct of Business of the Companies. (a) From the date hereof until the Closing, Seller shall cause the Companies to conduct their businesses only in the ordinary course and in a manner consistent with past practices, and use their respective Reasonable Efforts to preserve their relationships with licensors, suppliers, dealers, customers and others having business relationships with the Companies. Except as contemplated by this Agreement, as may be required by applicable law, regulation or any Governmental Entity, or as set forth on Schedule 5.5(a), from the date hereof until the Closing without written consent of Buyer, Seller shall not permit either of the Companies to:
(i) sell or dispose of any of its material assets or properties, other than sales and dispositions in the ordinary course of business, sales or dispositions of obsolete or surplus assets, sales and dispositions in connection with the normal repair and/or replacement of assets or properties, or sales or dispositions in accordance with any Material Contract;
(ii) create any material Lien on any of its assets, except if such material Lien shall be released as of Closing;
(iii) amend in any material respect, terminate (except in accordance with its terms) or assign any Material Contract or amend in any material respect, extend the term, terminate (except in accordance with its terms) or assign any Affiliate Agreement that survives the Closing;
(iv) incur any obligation or liability for borrowed money (“Indebtedness”) other than (A) Indebtedness incurred in the ordinary course of business, (B) Indebtedness to Affiliates which will be extinguished prior to the Closing, and (C) Indebtedness incurred in accordance with a Contract or pursuant to Contracts otherwise permitted to be entered into under this Agreement;
(v) merge or consolidate with, or acquire any or all of the capital stock or assets of any other Person;
(vi) assume, guarantee, endorse or otherwise become responsible for the obligations of any other Person, or make loans or advances to any other Person, except in the ordinary course of business;
(vii) grant any general increase in the compensation or benefits of any Continued Company Employees except in the ordinary course of business or unless such action is permitted or required by an existing agreement, including any Employee Plan or any Collective Bargaining Agreement or, with respect to Continued Company Employees and except for those that in the ordinary course of business would also affect employees of the Compan...
Conduct of Business of the Companies. Except as otherwise contemplated by this Agreement or specifically consented to in writing by HomeFed or authorized by HomeFed under the Development Management Agreement, from the date of this Agreement through the Closing Date, LUK shall cause the Companies to (i) conduct their businesses only in the ordinary course consistent with past practices, (ii) maintain insurance coverages; provided, however, that consistent with past practices, the Companies shall reimburse LUK for the cost of providing such insurance coverages, (iii) comply in all material respects with all applicable Laws, and (iv) perform in all material respects their obligations under all Contracts material to the operations of the Companies taken as a whole to which they are parties or by which they are bound and shall maintain all existing agreements and arrangements between or among LUK and the Companies.
Conduct of Business of the Companies. Except as required in connection with the transactions contemplated by this Agreement and except as otherwise consented to in writing by ESI (which consent shall not be unreasonably withheld), from the date hereof until the Closing Date, (i) the Shareholders shall cause each of the Companies to, and the LP and the LLC shall, conduct their respective businesses in the ordinary course on a basis consistent with past practice and (ii) the Shareholders shall cause each of the Companies to, and the LP and the LLC shall:
(a) use reasonable best efforts to preserve intact the goodwill and business organization of each of the Companies, keep the officers and employees of each Company available to ESI and preserve the relationships and goodwill of each Company with customers, distributors, suppliers, employees and others having business relations with each Company;
(b) maintain the existence and good standing in their respective jurisdictions of organization and in each jurisdiction in which they are qualified to do business as a foreign corporation;
(c) duly and timely file or cause to be filed all reports and returns required to be filed with the Internal Revenue Service and applicable States and localities, and promptly and timely pay or cause to be paid when due all Taxes, including interest and penalties levied or assessed, unless diligently contested in good faith by appropriate proceedings;
(d) maintain in existing condition and repair (ordinary wear and tear excepted), consistent with past practices, all buildings, offices and other structures located on the Owned Real Property and the Leased Real Property (there being no structures on the LLC Leased Real Property), and all equipment, improvements, fixtures and other tangible personal property located on the Owned Real Property, the Leased Real Property and the LLC Leased Real Property or subject to the Equipment Lease;
(e) not authorize for issuance, issue or deliver any additional shares of capital stock or securities convertible into or exchangeable for shares of capital stock, or issue or grant any right, option or other commitment for the issuance of shares of capital stock or of such securities, or split, combine or reclassify any shares of its capital stock;
(f) not amend or modify the charter, bylaws, limited partnership agreement, operating agreement or similar document of any of the Companies, the LP or the LLC, other than the amendment to the charter of NPA described in SCHEDULE 4.2.1 to the Disc...
