Conduct of Business Pending the Closing. 5.1 Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date: (a) The Company shall conduct its business and operations only in the usual and ordinary course of business; (b) The Company shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Articles of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (c) The Company shall not, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof, (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing; (d) The Company shall not enter into any employment, severance or similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to, any officers or directors; (e) The Company shall not adopt any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee; (f) The Company shall (i) use its best efforts not to take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue at any time prior to the Closing Date as if then made; and
Appears in 2 contracts
Samples: Stock Purchase Agreement (Win Gate Equity Group Inc), Stock Purchase Agreement (Morgan Gary D)
Conduct of Business Pending the Closing. 5.1 Conduct of Business by the Company Image Pending the Closing. The Company Image covenants and agrees that that, prior to the Closing Date, unless TBA shall otherwise approve in writing (which approval will not be unreasonably withheld) or as otherwise expressly contemplated or permitted by this Agreement:
(a) The Company Image shall conduct its business and operations operations, including its cash management practices, the collection of receivables, maintenance of facilities and payment of payables, only in the usual and ordinary course of businessbusiness and consistent with past custom and practice in all material respects;
(b) The Company Image shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber any material portion of its assets, except in the ordinary course of business; (ii) amend or propose to amend its Articles of Incorporation charter or Bylawsbylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock, provided, however, Image shall be allowed to distribute cash with respect to its stock in an amount equal to its net income for prior periods ending on the Closing Date, provided further that no such cash distribution may create or increase a deficit working capital (current liabilities in excess of current assets) of Image as of the Closing Date; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; or (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoingmatters set forth in this Section 5.1(b);
(c) The Company Image shall not, not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof, ; (iii) incur any material indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) The Company Image shall not (i) enter into or modify any employment, severance or similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to, any officers or directors; or (ii) in the case of employees who are not officers or directors, take any action other than in the ordinary course of business and consistent in all material respects with past practice (none of which shall be unreasonable or unusual) with respect to the grant of any bonuses, salary increases, severance or termination pay or with respect to any increase of benefits payable in effect on January 1, 1998;
(e) The Company Image shall not adopt or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(f) The Company Except as otherwise required by its charter or bylaws, by this Agreement or by applicable law, Image shall not call any meeting of its shareholders and, with respect to any meeting of its shareholders called by Image, shall provide to TBA copies of all written materials and other information given to the shareholders prior to the time such materials and information are given to the shareholders;
(g) Image shall use commercially reasonable efforts to cause its current insurance (or reinsurance) policies not to be canceled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and reinsurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(h) Image shall (i) use commercially reasonable efforts to preserve intact its best business organization and goodwill, keep in full force and effect all material rights, licenses, permits and franchises relating to its business, keep available the services of its officers and employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it; (ii) report on a regular and frequent basis, at reasonable times, to representatives of TBA regarding operational matters and the general status of ongoing operations; (iii) use commercially reasonable efforts not to take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Closing Date as if then made; and (iv) notify TBA of any emergency or other change in the normal course of their respective business or in the operation of their properties and of any tax audits, tax claims, governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated) if such emergency, change, audit, claim, complaint, investigation or hearing would be material, individually or in the aggregate, to the financial condition, results of operations or business of Image, or to the ability of Image or TBA to consummate the transactions contemplated by this Agreement;
(i) Image shall deliver to TBA promptly (but in any event within two business days) after the discovery or receipt of notice of any default under any material agreement to which it is a party or any other material adverse event or circumstance affecting Image (including the filing of any material litigation against Image or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced), a certificate of the President of Image specifying the nature and period of the existence thereof and what actions Image has taken and proposes to take with respect thereto;
(j) Image shall use commercially reasonable efforts to maintain its assets in customary repair, order and condition, replace in accordance with past practice its inoperable, worn out or obsolete assets with assets of quality at least comparable to the original quality of the assets being replaced and maintain in all material respects its books, accounts and records in accordance with past custom and practice as used in the preparation of the Financial Statements;
(k) Image shall use commercially reasonable efforts to maintain in full force and effect the existence of all material patents, inventions, trademarks, service marks, trade dress, trade names, corporate names, copyrights, mask works, trade secrets, licenses, computer soft ware, xxta and documentation and other proprietary rights, which it uses or owns;
(l) Image shall have positive working capital on the Closing Date;
(m) Image shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and
(n) Image shall not enter into any contract (except for artist performances) requiring payments in excess of $5,000 or for a duration of more than one (1) year. For purposes of this Section 5.1, should TBA fail to approve in writing any action for which its approval is required pursuant to this Section 5.1 within three (3) business days after its receipt of a written request for approval in accordance with the notice requirements contained herein, the matter shall be deemed approved by TBA. Notwithstanding any other provision of this Agreement, the amendment or modification of the Disclosure Schedule by Image after the time TBA has signed this Agreement shall have no effect with respect to the agreements, covenants and obligations of Image and TBA pursuant to this Section 5.1 and Sections 7.2 and 7.3 of this Agreement.
Appears in 1 contract
Conduct of Business Pending the Closing. 5.1 Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to that, between the date of this Agreement and the Closing Date:
(a) , the Business shall be conducted only in, and shall not take any action except in, the ordinary course of business consistent with past practice. The Company shall conduct use its reasonable best efforts to preserve intact its business organization, to keep available the services of its current officers, employees and operations only in consultants, and to preserve its present relationships with customers, suppliers and other persons with which it has significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement, the usual and ordinary course of business;
(b) The Company shall not between the date of this Agreement and the Closing Date, directly or indirectly indirectly, do or propose or agree to do any of the followingfollowing without the prior written consent of Nations: (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend otherwise change its Articles articles of Incorporation incorporation or Bylawsbylaws or equivalent organizational documents; (iii) splitissue or authorize the issuance of, combine or reclassify any outstanding shares of its capital stockstock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock or other ownership interest; declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock; (iv) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contractindirectly, agreement, commitment or arrangement with respect to any of the foregoing;
(c) The Company shall not, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (including, without limitation, for cash, or shares of stock, property or services, by merger, consolidation, consolidation or acquisition of stock or assets or otherwiseassets) any interest in any corporation, partnership or other business organization or division or the material assets thereof, ; (iiif) incur any additional indebtedness for borrowed money, issue or prepay any debt securities Indebtedness other than in the ordinary course of business consistent with past practices; (g) make any loans or advances to any person or entity or guarantee the indebtedness of any indebtedness person or entity, except in the ordinary course of business consistent with past practice; (h) sell, dispose of or encumber any of its assets, other than in the ordinary course of business, consistent with past practice; (i) enter into, modify or terminate, any Contract, other than in the ordinary course of business consistent with past practice; (j) pay any bonus to othersor increase the compensation or benefits payable or to become payable to its employees, independent contractors or consultants; (k) pay, discharge or satisfy any existing claims, liabilities or obligations other than in the ordinary course of business consistent with past practice; (l) increase or decrease prices charged to its customers, except for previously announced price changes, or take any other action which might reasonably result in any increase in the loss of customers; or (ivm) enter into agree, in writing or modify any contractotherwise, agreement, commitment to take or arrangement with respect to authorize any of the foregoing;
(d) The Company shall not enter into foregoing actions or any employment, severance or similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to, any officers or directors;
(e) The Company shall not adopt any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(f) The Company shall (i) use its best efforts not to take any action which would render, or which reasonably may be expected to render, make any representation or warranty made by it in this Agreement Article III untrue at any time prior to the Closing Date as if then made; andor incorrect.
Appears in 1 contract
Conduct of Business Pending the Closing. 5.1 Conduct of Business by the Company Pending the Closing. The Company covenants and agrees HFG jointly and severally covenant and agree that prior to the Closing Date:
(a) The Company shall conduct its business and operations only in the usual and ordinary course of business;
(b) The Except as contemplated by this Agreement and as necessary to effect the proposals contained in the Proxy Statement, the Company shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Articles of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(c) The Except as contemplated by this Agreement, the Company shall not, not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof, ; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) The Company shall not enter into any employment, severance or similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to, any officers or directors;
(e) The Company shall not adopt any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(f) Except as otherwise required by its Articles of Incorporation or Bylaws, by this Agreement or by applicable law, the Company shall not call any meeting of shareholders;
(g) The Company and HFG shall notify MTS of any emergency or other change in the normal course of its business or in the operation of its properties and of any tax audits, tax claims, environmental, governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated) if such emergency, change, audit, claim, complaint, investigation or hearing would be material, individually or in the aggregate, to the financial condition, results of operations or business of the Company, or to the ability of any of the parties hereto to consummate the transactions contemplated by this Agreement;
(h) The Company shall notify MTS promptly of any material adverse event or circumstance affecting the Company, whether threatened or existing (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); and
(i) use The Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its best efforts not to take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue at any time prior to the Closing Date as if then made; andoperations and business and pay all applicable taxes.
Appears in 1 contract
Samples: Stock Exchange Agreement (Microwave Transmission Systems Inc)
Conduct of Business Pending the Closing. 5.1 Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to that, between the date of this Agreement and the Closing Date:
(a) , the Business shall be conducted only in, and shall not take any action except in, the ordinary course of business consistent with past practice. The Company shall conduct use its reasonable best efforts to preserve intact its business organization, to keep available the services of its current officers, employees and operations only in consultants, and to preserve its present relationships with customers, suppliers and other persons with which it has significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement, the usual and ordinary course of business;
(b) The Company shall not between the date of this Agreement and the Closing Date, directly or indirectly indirectly, do or propose or agree to do any of the followingfollowing without the prior written consent of Nations: (i) sell, pledge, dispose of or encumber any of its assets; (iia) amend or propose to amend otherwise change its Articles articles of Incorporation incorporation or Bylawsbylaws or equivalent organizational documents; (iiib) splitissue or authorize the issuance of, combine or reclassify any outstanding shares of its capital stockstock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock or other ownership interest; (c) declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock other than as contemplated by Section 3.29; (d) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(c) The Company shall not, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (iie) acquire (including, without limitation, for cash, or shares of stock, property or services, by merger, consolidation, consolidation or acquisition of stock or assets or otherwiseassets) any interest in any corporation, partnership or other business organization or division or the material assets thereof, ; (iiif) incur any additional indebtedness for borrowed money, issue or prepay any debt securities Indebtedness other than to fund additional equipment purchases; (g) make any loans or advances to any person or entity or guarantee the indebtedness of any indebtedness person or entity, except in the ordinary course of business consistent with past practice; (h) sell, dispose of or encumber any of its assets outside the ordinary course of business ; (I) enter into, modify or terminate, any Contract, other than in the ordinary course of business consistent with past practice; (j) pay any bonus to othersor increase the compensation or benefits payable or to become payable to its employees, independent contractors or consultants except as described in Section 5.14 below; (k) pay, discharge or satisfy any existing claims, liabilities or obligations other than in the ordinary course of business consistent with past practice; (l) increase or decrease prices charged to its customers, except for previously announced price changes, or take any other action which might reasonably result in any increase in the loss of customers; (m) make (or commit to make) any capital expenditures in excess of $10,000 except in the ordinary course of business; or (ivn) enter into agree, in writing or modify any contractotherwise, agreement, commitment to take or arrangement with respect to authorize any of the foregoing;
(d) The Company shall not enter into foregoing actions or any employment, severance or similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to, any officers or directors;
(e) The Company shall not adopt any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(f) The Company shall (i) use its best efforts not to take any action which would render, or which reasonably may be expected to render, make any representation or warranty made by it in this Agreement Article III untrue at any time prior to the Closing Date as if then made; andor incorrect.
Appears in 1 contract
Conduct of Business Pending the Closing. 5.1 4.1 Conduct of Business by the Company Pending the Closing. The Company Seller covenants and agrees that that, prior to the Closing Date, unless Purchaser shall otherwise agree in writing or as otherwise expressly contemplated by this Agreement Seller shall cause the Company to comply with the following:
(a) The businesses of the Company shall conduct its business be conducted only in, and operations only the Company shall not take any action except in the usual and ordinary course of businessbusiness and consistent with past practices, and the Company shall use its best efforts to maintain and preserve its business organization, assets, prospects, employees and advantageous business relationships;
(b) The Company shall not not, directly or indirectly indirectly, do any of the following: (i) authorize for issuance, issue, sell, pledge, deliver, or agree or commit to issue, sell, pledge or deliver (whether through the issuance or grant of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any capital stock of the Company or securities or rights convertible into or exchangeable for, shares of capital stock or securities convertible into or exchangeable for such shares or (ii) pledge, dispose of or encumber encumber, except in the ordinary course of business, any assets of its assetsthe Company (including any indebtedness owed to it or any claims held by it); (iiiii) amend or propose to amend its Articles of Incorporation charter or Bylawsbylaws or similar organizational documents; (iiiiv) split, combine or reclassify any outstanding shares of its capital stock, stock or declare, set aside or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock; (ivv) redeem, purchase or otherwise acquire or offer to redeem, purchase or otherwise acquire any shares of its capital stock or other securities; (v) create any subsidiariesof the Company; (vi) enter into transfer any assets or modify any contract, agreement, commitment or arrangement with respect liabilities to any of the foregoingsubsidiary;
(c) The Company shall not, directly or indirectly, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, consolidation or acquisition of stock or assets or otherwiseassets) any corporation, partnership or other business organization or division thereof or make any investment either by purchase of stock or securities, contributions to capital, property transfer or purchase of any amount of property or assets of any other individual or entity; (ii) acquire any assets for a value in excess of $50,000 other than in the material assets thereof, ordinary course of business; (iii) dispose of any assets with a value in excess of $50,000 other than in the ordinary course of business; (iv) incur any indebtedness for borrowed money, money or issue any debt securities or guarantee assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any indebtedness to othersother individual or entity, make any loans or advances or enter into any other transaction, except in the ordinary course of business and consistent with past practice; (v) authorize, recommend or propose any change in its capitalization or any release or relinquishment of any contract right; or (ivvi) authorize or propose any of the foregoing or enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) The Company shall not enter into or adopt any employment, severance or similar agreements or arrangements withnew, or grant amend any bonus, salary increaseexisting, severance or termination pay tobenefit arrangements, consulting agreements, any officers employment benefit plans, or directorsarrangement;
(e) The Except for arrangements existing prior to January 1, 1999 or as noted in Schedule 3.20, the Company (except for salary increases or other employee benefit arrangements in the ordinary course of business) shall not adopt or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, plan, fund or other arrangement for the benefit or welfare of any employeeemployee or increase or pay any benefit not required by any existing plan and arrangement;
(f) The Company shall not, pay, discharge or satisfy any claims, liabilities or obligations (iabsolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities reflected or reserved against in the Company's Financial Statements or incurred in the ordinary course of business and consistent with past practice;
(g) The Company shall not waive, release, grant or transfer any franchises, franchise agreements, patents, patent rights, trademarks, trademark rights, trade names, trade name rights, copyrights or know-how or modify or change in any respect any existing license, lease, contract franchise, franchise agreement or other document, other than in the ordinary course of business and consistent with past practice;
(h) The Company shall use its best efforts to preserve its business organization intact, to keep available the services of its current officers and key employees and to maintain satisfactory relationships with reinsurers, policyholders, licensors, licensees, suppliers, contractors, distributors, customers and others having significant business relationships with the Company;
(i) The Company shall not to take any action which would renderenter into, modify, amend, or which reasonably may be expected terminate any reinsurance agreements;
(j) The Company shall not make capital expenditures in the aggregate in excess of $50,000; or
(k) The Company shall not authorize or propose any of the foregoing or enter into any contract, agreement, commitment or arrangement to render, do any representation or warranty made by it in this Agreement untrue at any time prior to of the Closing Date as if then made; andforegoing.
Appears in 1 contract
Samples: Purchase Agreement (Millers Mutual Fire Insurance Co)
Conduct of Business Pending the Closing. 5.1 Conduct of Business by the Company Magnum Pending the Closing. The Company Magnum covenants and agrees that that, prior to the Closing Date, unless TBA shall otherwise approve in writing (which approval will not be unreasonably withheld) or as otherwise expressly contemplated or permitted by this Agreement:
(a) The Company Magnum shall conduct its business and operations operations, including its cash management practices, the collection of receivables, maintenance of facilities and payment of payables, only in the usual and ordinary course of businessbusiness and consistent with past custom and practice in all material respects;
(b) The Company Magnum shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber any material portion of its assets, except in the ordinary course of business; (ii) amend or propose to amend its Articles of Incorporation charter or Bylawsbylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; or (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoingmatters set forth in this Section 5.1(b);
(c) The Company Magnum shall not, not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof, ; (iii) incur any material indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) The Company Magnum shall not (i) enter into or modify any employment, severance or similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to, any officers or directors; or (ii) in the case of employees who are not officers or directors, take any action other than in the ordinary course of business and consistent in all material respects with past practice (none of which shall be unreasonable or unusual) with respect to the grant of any bonuses, salary increases, severance or termination pay or with respect to any increase of benefits payable in effect on January 1, 1998;
(e) The Company Magnum shall not adopt or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(f) The Company Except as otherwise required by its charter or bylaws, by this Agreement or by applicable law, Magnum shall not call any meeting of its shareholders and, with respect to any meeting of its shareholders called by Magnum, shall provide to TBA copies of all written materials and other information given to the shareholders prior to the time such materials and information are given to the shareholders;
(g) Magnum shall use commercially reasonable efforts to cause its current insurance (or reinsurance) policies not to be canceled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and reinsurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the can celled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(h) Magnum shall (i) use commercially reasonable efforts to preserve intact its best business organization and goodwill, keep in full force and effect all material rights, licenses, permits and franchises relating to its business, keep available the services of its officers and employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it; (ii) report on a regular and frequent basis, at reasonable times, to representatives of TBA regarding operational matters and the general status of ongoing operations; (iii) use commercially reasonable efforts not to take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue in any material respect at any time prior to the Closing Date as if then made; and (iv) notify TBA of any emergency or other change in the normal course of business or in the operation of its properties and of any tax audits, tax claims, governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated) if such emergency, change, audit, claim, complaint, investigation or hearing would be material, individually or in the aggregate, to the financial condition, results of operations or business of Magnum, or to the ability of Magnum or TBA to consummate the transactions contemplated by this Agreement;
(i) Magnum shall deliver to TBA promptly (but in any event within two business days) after the discovery or receipt of notice of any default under any material agreement to which it is a party or any other material adverse event or circumstance affecting Magnum (including the filing of any material litigation against Magnum or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced), a certificate of the President of Magnum specifying the nature and period of the existence thereof and what actions Magnum has taken and proposes to take with respect thereto;
(j) Magnum shall use commercially reasonable efforts to maintain its assets in customary repair, order and condition, replace in accordance with past practice its inoperable, worn out or obsolete assets with assets of quality at least comparable to the original quality of the assets being replaced and maintain in all material respects its books, accounts and records in accordance with past custom and practice as used in the preparation of the Financial Statements;
(k) Magnum shall use commercially reasonable efforts to maintain in full force and effect the existence of all material patents, inventions, trademarks, service marks, trade dress, trade names, corporate names, copyrights, mask works, trade secrets, licenses, computer soft ware, xxta and documentation and other proprietary rights, which it uses or owns;
(l) Magnum shall comply in all material respects with all legal requirements and contractual obligations applicable to its operations and business and pay all applicable taxes; and
(m) Magnum shall not enter into any contract (except for artist performances) requiring payments in excess of $10,000 or for a duration of more than one (1) year. For purposes of this Section 5.1, should TBA fail to approve in writing any action for which its approval is required pursuant to this Section 5.1 within three (3) business days after its receipt of a written request for approval in accordance with the notice requirements contained herein, the matter shall be deemed approved by TBA. Notwithstanding any other provision of this Agreement, the amendment or modification of the Disclosure Schedule by Magnum after the time TBA has signed this Agreement shall have no effect with respect to the agreements, covenants and obligations of Magnum and TBA pursuant to this Section 5.1 and Sections 7.2 and 7.3 of this Agreement.
Appears in 1 contract
Conduct of Business Pending the Closing. 5.1 Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that prior to the Closing Date:
(a) The Company shall conduct its business and operations only in the usual and ordinary course of business;
(b) The Except as contemplated by this Agreement and as necessary to effect the proposals contained in the Proxy Statement, the Company shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Articles Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(c) The Except as contemplated by this Agreement, the Company shall not, not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof, ; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) The Company shall not enter into any employment, severance or similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to, any officers or directors;
(e) The Company shall not adopt any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(f) Except as otherwise required by its Certificate of Incorporation or Bylaws, by this Agreement or by applicable law, the Company shall not call any meeting of stockholders;
(g) The Company shall notify Tickets of any emergency or other change in the normal course of its business or in the operation of its properties and of any tax audits, tax claims, governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated) if such emergency, change, audit, claim, complaint, investigation or hearing would be material, individually or in the aggregate, to the financial condition, results of operations or business of the Company, or to the ability of any of the parties hereto to consummate the transactions contemplated by this Agreement;
(h) The Company shall notify Tickets promptly of any material adverse event or circumstance affecting the Company (including the filing of any material litigation against the Company or the existence of any dispute with any person or entity which involves a reasonable likelihood of such litigation being commenced); and
(i) use The Company shall comply in all material respects with all legal requirements and contractual obligations applicable to its best efforts not to take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue at any time prior to the Closing Date as if then made; andoperations and business and pay all applicable taxes.
Appears in 1 contract
Samples: Stock Exchange Agreement (TTT Tickets Holding Corp)
Conduct of Business Pending the Closing. 5.1 4.1 Conduct of Business by the Company Pending the Closing. The Company hereby covenants and agrees that that, between the date of this Agreement and the Effective Time, the business of the Company shall be conducted only in, and the Company shall not take any action except in, the ordinary course of business consistent with past practice. The Company shall use its reasonable best efforts to preserve intact the Company's business organizations, to keep available the services of their current officers, employees and consultants, and to preserve their present relationships with customers, suppliers and other persons with which they have significant business relations. By way of amplification and not limitation, except as contemplated by this Agreement, the Company, between the date of this Agreement and the Effective Time, shall not do or propose or agree to do, directly or indirectly, any of the following without the prior to the Closing Datewritten consent of Level 8:
(a) The Company shall conduct amend or otherwise change its business and operations only in the usual and ordinary course Certificate of businessIncorporation or Bylaws;
(b) The Company shall not directly or indirectly do any of the following: (i) issue, sell, pledge, dispose of, encumber, or, authorize the issuance, sale, pledge, disposition, grant or encumbrance of (i) any shares of its capital stock of any class, or encumber any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest, of it, or (ii) any of its assets; , tangible or intangible, except, in the case of (ii), in the ordinary course of business consistent with past practice;
(c) amend or propose to amend its Articles of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside aside, make or pay any dividend or other distribution distribution, payable in cash, stock, property or otherwise otherwise, with respect to shares any of its capital stock; .
(ivd) reclassify, combine, split, subdivide or redeem, purchase or acquire otherwise acquire, directly or offer to acquire indirectly, any shares of its capital stock or other securities; (v) create any subsidiaries; (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoingpartnership interests;
(c) The Company shall not, (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (including, without limitation, for cash or shares of stock or partnership interests, by merger, consolidation, consolidation or acquisition of stock or assets or otherwiseassets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or, except in the material ordinary course of business, consistent with past practice, purchase any property or assets thereofof any other Person, (iiiii) incur any indebtedness for borrowed money, money or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any indebtedness to others; Person, or make any loans or advances, or (iviii) modify, terminate, or enter into any Contract other than as provided herein or modify any contractin the ordinary course of business, agreement, commitment or arrangement consistent with respect to any of the foregoingpast practice;
(df) The Company shall not enter into any employmentincrease the compensation payable or to become payable to its officers or employees or partners, severance or similar agreements or arrangements withor, or except as presently bound to do, grant any bonus, salary increase, severance or termination pay to, or enter into any employment or severance agreement with, any trustee or any of its directors, officers or directors;
(e) The Company shall not adopt other employees or partners, or establish, adopt, enter into or amend or take any action to accelerate any rights or benefits which any collective bargaining, bonus, profit sharing, trust, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment employment, termination, severance or other employee benefit plan, agreement, trust, fund fund, policy or arrangement for the benefit or welfare of any employeetrustees, directors, officers or employees or partners;
(fg) The Company shall take any action with respect to accounting policies or procedures other than in the ordinary course of business and in a manner consistent with past practice;
(h) pay, discharge or satisfy any existing claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of due and payable liabilities reflected or reserved against in its financial statements, as appropriate, or liabilities incurred after the date thereof in the ordinary course of business and consistent with past practice;
(i) use increase or decrease prices charged to its best efforts not customers, except in the ordinary course of business consistent with past practice, or take any other action which would naturally tend to result in any material increase in the loss of customers; materially increase or decrease the average monthly inventory, other than in the ordinary course of business and in a manner consistent with past practice;
(j) enter into any transaction with any principal stockholder or Affiliate thereof, or
(k) agree, in writing or otherwise, to take or authorize any of the foregoing actions or any action which would render, or which reasonably may be expected to render, make any representation or warranty made by it in this Agreement Article III untrue at or incorrect in any time prior to the Closing Date as if then made; andmaterial respect.
Appears in 1 contract
Conduct of Business Pending the Closing. 5.1 4.1 Conduct of Business by the Company Pending the Closing. The Company Company, WGI and HFG, with the covenants and agrees agreements of HFG contained in this Article to be, as applicable, solely on a best efforts basis, jointly and severally covenant and agree that prior to the Closing Date:
(a) The Company shall conduct con its business and operations only in the usual and ordinary course of businesscourse;
(b) The Except as contemplated by this Agreement and as necessary to effect the proposals contained in the Proxy Statement (as hereinafter defined), the Company shall not directly or indirectly do any of the following: (i) sell, pledge, dispose of or encumber any of its assets; (ii) amend or propose to amend its Articles of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to shares of its capital stock; (iv) redeem, purchase or acquire or offer to acquire any shares of its capital stock or other securities; (v) create any subsidiaries; or (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(c) The Company shall not, not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital stock; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division or the material assets thereof, ; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to others; or (iv) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing;
(d) The Company shall not enter into any employment, severance or similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to, any officers or directors;
(e) The Company shall not adopt any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any employee;
(f) Except as otherwise required by its Articles of Incorporation or Bylaws, by this Agreement or by applicable law, neither the Company, WGI nor HFG shall call any meeting of shareholders;
(g) The Company Company, WGI and HFG shall (i) use its their best efforts not to take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it them in this Agreement untrue at any time prior to the Closing Date as if then made; and
Appears in 1 contract
Samples: Merger Agreement (Alford Refrigerated Warehouses Inc)
