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. Except as set forth in Schedule 7.1, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with ARTICLE 10, (i) (x) the Sellers will cause each of the Companies to conduct its respective business and operations in the ordinary course consistent with past practice (including, without limitation, maintaining normal inventory levels), and (y) the Sellers will cause each of the Companies respectively to use its reasonable best efforts to maintain its corporate existence, preserve intact its material business relationships and goodwill with customers, suppliers and distributors, and keep available the services of its officers and key employees and (ii) without the prior written consent of the Buyer (which consent shall not be unreasonably delayed or withheld), none of the Companies shall undertake any of the following actions:
(a) issue, sell or pledge or otherwise encumber, or authorize or propose the issuance, sale, pledge or encumbrance of any securities in respect of, in lieu of, or in substitution for shares of such Company;
(b) adopt any amendment to such Company’s articles of incorporation or by laws;
(c) incur any Indebtedness other than pursuant to its existing debt instruments or repay, prepay or otherwise reduce the amount of its Indebtedness outstanding on the date hereof, except as required by the terms thereof as in effect on the date of this Agreement;
(d) (i) increase the rate or terms of compensation or benefits of any of its directors, officers or other employees, or pay any bonus or other amount to any director, officer or employee, except as may be required under existing employment agreements or such merit raises or increases in benefits, in each case (x) in the ordinary course of business consistent with past practice to the base salary or wages of employees of such Company who are not officers, senior managers or directors, or (y) as required by applicable law, (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not contemplated by any Company Benefit Plan to any director, officer or employee, whether past or present, (iii) enter into, adopt or amend (except to comply with applicable law) any employment, bonus, severance or retirement contract or adopt any employee benefit plan, or (iv) hire any officer or director;
(e) sell, lease, license, transfer, abandon or otherwise dispose of, any of its property or assets other than ...
Conduct of Business of the Companies. During the period from the date hereof to the Closing Date, the Sellers hereby covenant that they shall cause each Company to conduct its operations in the ordinary course of business, consistent with past practice. Notwithstanding the immediately preceding sentence, during the period from the date hereof to the Closing Date, except as may be approved in writing by the Purchaser (such approval not to be unreasonably withheld or delayed) or as expressly provided in this Agreement or required by law or as set forth in SCHEDULE 5.1
(a) attached hereto, the Sellers shall not permit any Company to (a) amend its articles of incorporation, bylaws or other similar corporate governance instruments, (b) increase the compensation payable to, or to become payable by such Company to, any of its directors, officers or employees being paid $100,000 per year or more at the date of this Agreement except pursuant to the terms of any contract, agreement, plan or arrangement set forth in SCHEDULE 3.12 or with the Purchaser's consent, which shall not be unreasonably withheld or delayed, (c) increase any bonus, pension, retirement or insurance payment or arrangement to or with any such Persons except pursuant to the terms of any contract, agreement, plan or arrangement set forth in SCHEDULE 5.1(c), (d) enter into any contract or commitment which would require such Company to pay in excess of $100,000 per annum, and is not cancelable within 90 days notice without payment of any material premium or penalty in respect thereof, except contracts and commitments in the ordinary course of business consistent with past practice, (e) increase its indebtedness for borrowed money, except borrowings under such Company's existing credit agreements, (f) except as permitted pursuant to Section 5.8, declare or pay any dividends in respect of any capital stock of such Company, or redeem, purchase or otherwise acquire any of such Company's capital stock, (g) issue or sell any shares of its capital stock or any other securities, or issue any securities convertible into, or options, warrants or rights to purchase or subscribe to, or enter into any arrangement or contract with respect to the issue and sale of, any shares of its capital stock or any other securities, or make any other changes in its capital structure, (h) organize any new subsidiary or acquire any capital stock or other equity securities, or equity or ownership interest in the business of any Person, (i) modify, amend or terminate a...
Conduct of Business of the Companies. Except (i) as contemplated by this Agreement, (ii) to the extent required by any applicable Law, (iii) as set forth on Schedule 6.1, (iv) as consented to in writing by Buyer (which consent shall not be unreasonably withheld, Certain identified information marked with [***] has been excluded from this exhibit because it is not material and is of the type that the registrant treats as private and confidential. 51 conditioned or delayed) or (v) as would not cause either Company to breach or violate such Company’s Governing Documents, from and after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Sellers shall (A) cause the Company to (x) conduct its business in the ordinary course of business consistent with past practice in all material respects and (y) use commercially reasonable efforts to preserve intact its business organization and its present commercial relationships with employees, customers, suppliers and other Persons who have commercial relationships with the Company, and to keep available the services of its present officers and management-level employees and (B) cause the Company not to: CELSE; (a) modify or amend any of the Governing Documents of the Companies or of (b) issue, sell, pledge, encumber or grant any (i) Equity Interests in a Company or in CELSE, (ii) securities convertible into or exchangeable for any Equity Interests, or any options, warrants or rights to acquire any such Equity Interests or (iii) any “phantom” stock, “phantom” stock rights, stock appreciation rights, stock-based performance units or other securities the value of which is derived fromthe price or value of the Equity Interests in a Company or in CELSE; (c) adopt a plan or agreement of complete or partial liquidation or dissolution or any Company or CELSE; (d) acquire by merging or consolidating with, or by purchasing a substantial amount of Equity Interests in or substantial portion of the assets of, any Person or division thereof; (e) except to the extent required to comply with applicable Law or the terms of any Company Plan, (i) adopt, materially amend, increase benefits under, or terminate any Company Plan or otherwise take any action to amend or waive any performance or vesting criteria or accelerate the vesting, exercisability or funding under any Company Plan; or (iii) enter into any collective bargaining agreement or other agreements with labor organizations; (f) change its material accounti...
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, 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. 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. Except as contemplated by this Agreement or with the prior written consent of Buyer, during the period from the date of this Agreement to the Closing, Sellers shall cause each of the Companies to conduct its operations only in the Ordinary Course of Business consistent with past practice, and Sellers will use their reasonable best efforts to, and will cause each of the Companies to, preserve intact the business and organization of each Company, to keep available the services of the present officers and key employees of each Company, and to preserve the good will of customers, suppliers and all other Persons having business relationships with any Company.
(a) Except as otherwise contemplated by this Agreement, prior to the Closing,Sellers shall not permit any Company to, without the prior written consent of Buyer:
(i) adopt any amendment to the certificate of incorporation or bylaws of any of Companies;
(ii) issue, reissue or sell, or authorize the issuance, reissuance or sale of any additional shares or other equity interest in any of the Companies or securities convertible into any rights, warrants or options to acquire any additional shares or other equity interest in any of the Companies;
(iii) declare, set aside or pay any dividend or make any other distribution (whether in cash, securities or property or any combination thereof);
(iv) split, combine, subdivide, reclassify or redeem, purchase or otherwise acquire, or propose to redeem or purchase or otherwise acquire, any of its shares or other equity interests;
(v) increase the compensation or fringe benefits payable or to become payable to its directors, officers or employees, or pay any benefit not required by any existing Employee Plan or Compensation Arrangement (including the granting of stock options, stock appreciation rights, shares of restricted stock or performance units) or grant any severance or termination pay to (except pursuant to existing Employee Plans or Compensation Arrangements) , or enter into, review, terminate, amend or waive any material provision of any employment or severance agreement with, any director, officer or other employee of any Company or establish, adopt, enter into or amend any collective bargaining agreement, employment agreement, termination agreement , Employee Plan or Compensation Arrangement;
(vi) acquire, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise) any assets (other tha...
Conduct of Business of the Companies. During the period from the date of this Agreement to the Closing Date, Seller shall cause the Companies to conduct their respective operations in the ordinary and usual course of business and consistent with past practice, to preserve intact their respective business organizations, and to use reasonable efforts (i) to keep available the services of their respective Personnel, (ii) to maintain and enforce all employment, non-competition, or nondisclosure agreements with its current and former Personnel, and (iii) to maintain satisfactory relationships with licensors, licensees, suppliers, contractors, distributors, customers and others having business relationships with the Companies, provided however, that nothing contained in this Section 7.1 shall prohibit or prevent the payment by any of the Companies of its payables and the collection of its receivables in the ordinary and usual course of its business consistent with past practice, or the payment by the Companies to the Seller of excess cash in the ordinary and usual course consistent with past practice. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing Date, Seller shall not, without in each instance obtaining the prior written consent of Purchaser, permit any Company to, and shall cause each Company not to:
7.1.1. adopt or propose any amendment to its certificate of incorporation or by-laws;
Conduct of Business of the Companies. Except as contemplated by this Agreement or as set forth in Section 5.2 of the Disclosure Schedules, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Companies shall, except to the extent expressly contemplated by this Agreement or as consented to in writing by Parent: (i) carry on their respective business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and (ii) use best efforts consistent with past practice and policies to (x) preserve their respective present business organizations, keep available the services of their present officers and employees and preserve their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with them, (y) preserve and protect their owned and leased properties and (z) conduct their business in compliance with all applicable Laws. Each of the Company shall promptly notify Parent of any event or occurrence not in the ordinary course of its business, consistent with past practice, and of any event which could have a Material Adverse Effect on such company.
