Common use of Conduct of the Business by the Company Clause in Contracts

Conduct of the Business by the Company. Unless the Seller shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the Pre-Closing Period, except as expressly contemplated by this Agreement, the Company shall and shall cause its Subsidiaries to (i) conduct their respective businesses, in all material respects, in the ordinary course of business consistent with past practice; (ii) comply with all Laws applicable to the Company and its Subsidiaries and their respective businesses, assets and employees; and (iii) preserve intact, in all material respects, their respective business organizations, maintain existing relations with all of the Company’s key customers, service providers, suppliers, and creditors, and keep available the services of their respective managers, directors, officers, employees and consultants, to maintain, in all material respects, and to preserve the possession, control and condition of their respective assets, all as consistent with past practice. Without limiting the foregoing, the Company shall not, and shall cause its Subsidiaries to not: 6.2.1 amend, waive or otherwise change, in any respect, any of the Company’s or its Subsidiaries’ Organizational Documents except as otherwise contemplated herein in connection with the Transaction; 6.2.2 authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities or other securities or interests, including any securities convertible into or exchangeable for any of its equity securities or securities interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such equity securities or other securities or equity interests; 6.2.3 split, combine, recapitalize or reclassify any of its equity interests or issue any other securities in respect thereof or declare, pay or set aside any distribution or other dividend (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its equity securities or securities interests; 6.2.4 incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise), make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, liability or obligation of any Person; 6.2.5 increase the wages, salaries or compensation of any of its employees by more than five percent (5%), or increase bonuses for the foregoing individuals in excess of five percent (5%), or make commitments to advance with respect to bonuses for fiscal year 2024, or materially increase other benefits of any of the foregoing individuals, or enter into, establish, materially amend or terminate any Non-U.S. Benefit Plan with, for or in respect of any current consultant, officer, manager, director or employee, in each case other than as required by applicable Law, pursuant to the terms of any such Benefit Plan, or in the ordinary course of business consistent with past practice; 6.2.6 make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law; 6.2.7 transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve the Intellectual Property or any Intellectual Property related to, or used in, the business and operations of the Company or its Subsidiaries, or disclose to any Person who has not entered into a confidentiality agreement any trade secrets; 6.2.8 terminate or waive or assign any material right under any Contract, or enter into any Contract (A) involving amounts potentially exceeding $5,000 per year, (B) that would be a Contract; or (C) with a term longer than one year that cannot be terminated without payment of a material penalty and upon notice of sixty (60) days or less; 6.2.9 fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice; 6.2.10 establish any new Subsidiary or enter into any new line of business; 6.2.11 fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to the assets, operations and activities of the Company or its Subsidiaries, in an amount and scope of coverage as is comparable to that which are currently in effect; 6.2.12 revalue any of its material assets or make any change in accounting methods, principles or practices, except as approved by its outside auditors; 6.2.13 waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by the Company or its Affiliates) not in excess of $5,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any claims, liabilities or obligations; 6.2.14 close or materially reduce any activities, or effect any layoff or other personnel reduction or change, at any of its facilities; 6.2.15 acquire, including by merger, consolidation, acquisition of stock or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business; 6.2.16 make capital expenditures in excess of $5,000 (individually or in the aggregate) other than in the ordinary course of business consistent with past practice; 6.2.17 adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization; 6.2.18 voluntarily incur any liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $5,000 in the aggregate other than pursuant to the terms of a Contract or Non-U.S Benefit Plan; 6.2.19 sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights; 6.2.20 enter into any agreement, understanding or arrangement with respect to the voting of the securities or the capital equity of the Company or its Subsidiaries; 6.2.21 take any action that would reasonably be expected to delay or impair the obtaining of any consents or approvals of any Governmental Authority to be obtained in connection with this Agreement; 6.2.22 enter into, amend, waive or terminate (other than terminations in accordance with their terms) any Company Affiliate Transaction; or 6.2.23 authorize or agree to do any of the foregoing actions.

Appears in 1 contract

Samples: Securities Purchase Agreement and Call Option (Nukkleus Inc.)

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Conduct of the Business by the Company. Unless From the Seller shall date of this Agreement until the Closing, unless Buyer otherwise consent agrees in writing writing, the Company will (such consent a) conduct its businesses and operations in the ordinary course of business; (b) preserve intact its corporate existence and business organization; (c) use its reasonable efforts to preserve the goodwill and present business relationships (contractual or otherwise) with all customers, suppliers, resellers, employees, licensors, distributors and others having business relationships with it; and (d) use its reasonable efforts to keep available the services of its current officers, directors, employees and consultants. Without limiting the foregoing, and as an extension thereof, except as set forth on Schedule 5.1 of the Disclosure Schedules or as expressly permitted by any other provision of this Agreement, the Company will not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the Pre-Closing PeriodClosing, directly or indirectly, do, or agree to do, any of the following without the prior written consent of Buyer: (a) sell, lease, license (as licensor), assign, dispose of or transfer (including transfers to any of the Company’s employees or Affiliates) any of its assets (whether tangible or intangible), except as expressly contemplated by this Agreementfor sales of inventory in the ordinary course of business; (b) mortgage, the Company shall and shall cause pledge or subject to any Lien any portion of its Subsidiaries properties or assets, other than Permitted Liens; (c) make, commit to (i) conduct their respective businessesmake or authorize any capital expenditure, in all material respects, except for capital expenditures made in the ordinary course of business consistent with past practice; (ii) comply with all Laws applicable to replace assets of the Company and its Subsidiaries and their respective businesses, assets and employees; and (iii) preserve intact, no longer used in all material respects, their respective business organizations, maintain existing relations with all of the Company’s key customers, service providers, suppliers, and creditors, and keep available the services of their respective managers, directors, officers, employees and consultants, to maintain, in all material respects, and to preserve the possession, control and condition of their respective assets, all as consistent with past practice. Without limiting the foregoing, the Company shall not, and shall cause its Subsidiaries to not: 6.2.1 amend, waive or otherwise change, in any respect, any of the Company’s or its Subsidiaries’ Organizational Documents except as otherwise contemplated herein in connection with the Transaction; 6.2.2 authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities or other securities or interests, including any securities convertible into or exchangeable for any of its equity securities or securities interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such equity securities or other securities or equity interests; 6.2.3 split, combine, recapitalize or reclassify any of its equity interests or issue any other securities in respect thereof or declare, pay or set aside any distribution or other dividend (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its equity securities or securities interests; 6.2.4 incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise), make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, liability or obligation of any Person; 6.2.5 increase the wages, salaries or compensation of any of its employees by more than five percent (5%), or increase bonuses for the foregoing individuals in excess of five percent (5%), or make commitments to advance with respect to bonuses for fiscal year 2024, or materially increase other benefits of any of the foregoing individuals, or enter into, establish, materially amend or terminate any Non-U.S. Benefit Plan with, for or in respect of any current consultant, officer, manager, director or employee, in each case other than as required by applicable Law, pursuant to the terms of any such Benefit Plan, or in the ordinary course of business consistent with past practice; 6.2.6 make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law; 6.2.7 transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve the Intellectual Property or any Intellectual Property related to, or used in, the business and operations of the Company due to age or its Subsidiariesmalfunction; (d) acquire (including by merger, consolidation, license or sublicense) any interest in any Person or substantial portion of the assets or business of any Person, or disclose to any Person who has not entered into a confidentiality agreement any trade secrets; 6.2.8 terminate or waive or assign otherwise acquire any material right under any Contractassets, or enter into any Contract except for the acquisition of (A) involving amounts potentially exceeding $5,000 per year, (B) that would be a Contract; or (C) with a term longer than one year that cannot be terminated without payment of a material penalty and upon notice of sixty (60) days or less; 6.2.9 fail to maintain its books, accounts and records in all material respects inventory in the ordinary course of business consistent with past practiceor (B) other capital assets in the ordinary course of business to replace assets of the Company no longer used in the business and operations of the Company; 6.2.10 establish (e) incur any new Subsidiary Indebtedness or assume, guarantee or endorse the obligations or enter into any new line “keepwell” or other agreements to maintain the fiscal condition of any Person; (f) enter into, amend, modify, accelerate or terminate any Material Contract, except for entry into any Material Contract for the sale of goods and services in the ordinary course of business; 6.2.11 fail (g) issue, sell, pledge, dispose of, encumber or transfer any equity securities, securities convertible, exchangeable or exercisable into equity securities, or warrants, options or other rights to use commercially reasonable efforts to keep acquire equity securities, of the Company, except for the issuance of capital stock of the Company upon the exercise of outstanding Company Options; (h) declare, set aside, or distribute any dividend or other distribution (whether payable in force insurance policies cash, stock, property or replacement a combination thereof), or revised policies providing insurance coverage enter into any agreement with respect to the assets, operations and activities voting of the Company its capital stock (or its Subsidiaries, in an amount and scope of coverage as is comparable to that which are currently in effectother equity securities); 6.2.12 revalue (i) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its material assets capital stock (or make any change in accounting methods, principles or practices, except as approved by its outside auditorsother equity securities); 6.2.13 (j) waive, release, assign, settle or compromise any claimmaterial rights or claims, or any litigation or arbitration; (k) disclose any trade secrets or other proprietary and confidential information to any Person (other than Buyer and its representatives) that is not subject to any confidentiality or non-disclosure agreement; (l) (A) increase the compensation or benefits payable or to become payable to any director, officer, employee or consultant of the Company; (B) grant or increase any rights to change in control, severance or termination payments or benefits to, or enter into any change in control, employment, consulting or severance agreement with, any director, officer, employee or consultant of the Company; (C) establish, adopt, enter into, amend, modify or terminate any employee benefit plan, except to the extent required by applicable Law; or (C) take any affirmative action to amend or proceeding waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any employee benefit plan; (including m) make loans or advances to, guarantees for the benefit of, or any suitinvestments in, actionany Person; (n) forgive any loans to directors, claimofficers, proceeding employees or investigation relating to this Agreement)any of their respective Affiliates; (o) make any change in accounting policies, practices, principles, methods or procedures, other than waivers, releases, assignments, settlements as required by GAAP or compromises that involve only the payment by a Governmental Entity; (A) accelerate or delay collection of monetary damages (and not the imposition notes or accounts receivable in advance of equitable relief on, or beyond their regular due dates or the admission of wrongdoing by dates when the Company or its Affiliates) not same would have been collected in excess of $5,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any claims, liabilities or obligations; 6.2.14 close or materially reduce any activities, or effect any layoff or other personnel reduction or change, at any of its facilities; 6.2.15 acquire, including by merger, consolidation, acquisition of stock or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business; 6.2.16 make capital expenditures ; (B) delay or accelerate payment of any account payable in excess advance of $5,000 (individually its due date or in the aggregate) other than date such liability would have been paid in the ordinary course of business consistent with business; (C) make any changes to cash management policies; (D) delay or postpone the repair or maintenance of their properties; or (E) vary any inventory purchase practices in any material respect from past practicepractices; 6.2.17 adopt a plan of complete (q) make any material Tax election or partial settle or compromise any Liability for Taxes; (r) take any action for the winding up, liquidation, dissolution, merger, consolidation, restructuring, recapitalization dissolution or other reorganization; 6.2.18 voluntarily incur any liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $5,000 in the aggregate other than pursuant to the terms of a Contract or Non-U.S Benefit Plan; 6.2.19 sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights; 6.2.20 enter into any agreement, understanding or arrangement with respect to the voting of the securities or the capital equity reorganization of the Company or for the appointment of a receiver, administrator or administrative receiver, trustee or similar officer of its Subsidiariesassets or revenues; 6.2.21 take any action that would reasonably be expected to delay (s) amend the Company’s charter documents, bylaws or impair the obtaining of any consents or approvals of any Governmental Authority to be obtained in connection with this Agreementsimilar governing documents; 6.2.22 enter into, amend, waive (t) cancel any Indebtedness owed to the Company; or terminate (other than terminations in accordance with their termsu) any Company Affiliate Transaction; or 6.2.23 authorize agree or agree commit to do any of the foregoing actionsforegoing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Aehr Test Systems)

Conduct of the Business by the Company. Unless The Company shall, and shall cause its subsidiaries to, carry on their respective businesses in the Seller shall ordinary course consistent with the manner as heretofore conducted and use commercially reasonable efforts to (x) preserve intact their current business organization, (y) keep available the services of their current officers and employees and (z) preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. Without limiting the generality of the foregoing, other than as set forth in Section 6.01 of the Disclosure Schedule or as otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing until the Pre-Closing Period, except as expressly contemplated by this Agreement, the Company shall and shall cause its Subsidiaries to (i) conduct their respective businesses, in all material respects, in the ordinary course of business consistent with past practice; (ii) comply with all Laws applicable to the Company and its Subsidiaries and their respective businesses, assets and employees; and (iii) preserve intact, in all material respects, their respective business organizations, maintain existing relations with all of the Company’s key customers, service providers, suppliers, and creditors, and keep available the services of their respective managers, directors, officers, employees and consultants, to maintain, in all material respects, and to preserve the possession, control and condition of their respective assets, all as consistent with past practice. Without limiting the foregoing, the Company shall not, and shall cause not permit any of its Subsidiaries subsidiaries to, without Parent's prior written consent (which shall not be unreasonably withheld): (1) other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to not: 6.2.1 amendits parent or pursuant to the Rights Agreement, waive (x) declare, set aside or otherwise changepay any dividends on, or make any other distributions (whether in cash, stock or property), in any respectrespect of, any of the Company’s or its Subsidiaries’ Organizational Documents except as otherwise contemplated herein in connection with the Transaction; 6.2.2 authorize for issuancecapital stock, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities or other securities or interests, including any securities convertible into or exchangeable for any of its equity securities or securities interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such equity securities or other securities or equity interests; 6.2.3 (y) split, combine, recapitalize combine or reclassify any of its equity interests capital stock or issue or authorize the issuance of any other securities in respect thereof of, in lieu of or declare, pay or set aside any distribution or other dividend (whether in cash, equity or property or any combination thereof) in respect substitution for shares of its equity interestscapital stock (other than the issuance of shares of Company Common Stock upon the exercise of Stock Options outstanding on the date of this Agreement and in accordance with their present terms) or (z) purchase, or directly or indirectly redeem, purchase redeem or otherwise acquire or offer to acquire any shares of its equity securities or securities interests; 6.2.4 incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise), make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, liability or obligation of any Person; 6.2.5 increase the wages, salaries or compensation of any of its employees by more than five percent (5%), or increase bonuses for the foregoing individuals in excess of five percent (5%), or make commitments to advance with respect to bonuses for fiscal year 2024, or materially increase other benefits of any of the foregoing individuals, or enter into, establish, materially amend or terminate any Non-U.S. Benefit Plan with, for or in respect of any current consultant, officer, manager, director or employee, in each case other than as required by applicable Law, pursuant to the terms of any such Benefit Plan, or in the ordinary course of business consistent with past practice; 6.2.6 make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law; 6.2.7 transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve the Intellectual Property or any Intellectual Property related to, or used in, the business and operations capital stock of the Company or its Subsidiaries, or disclose to any Person who has not entered into a confidentiality agreement any trade secrets; 6.2.8 terminate or waive or assign any material right under any Contract, or enter into any Contract (A) involving amounts potentially exceeding $5,000 per year, (B) that would be a Contract; or (C) with a term longer than one year that cannot be terminated without payment of a material penalty and upon notice of sixty (60) days or less; 6.2.9 fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice; 6.2.10 establish any new Subsidiary or enter into any new line of business; 6.2.11 fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to the assets, operations and activities of the Company or its Subsidiaries, in an amount and scope of coverage as is comparable to that which are currently in effect; 6.2.12 revalue any of its material assets or make any change in accounting methods, principles or practices, except as approved by its outside auditors; 6.2.13 waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by the Company or its Affiliates) not in excess of $5,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any claims, liabilities or obligations; 6.2.14 close or materially reduce any activities, or effect any layoff or other personnel reduction or change, at any of its facilities; 6.2.15 acquire, including by merger, consolidation, acquisition of stock or assets, subsidiaries or any other form of business combination, any corporation, partnership, limited liability company, other business organization securities thereof or any division thereofrights, warrants or options to acquire any material amount of assets outside the ordinary course of business; 6.2.16 make capital expenditures in excess of $5,000 (individually or in the aggregate) other than in the ordinary course of business consistent with past practice; 6.2.17 adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization such shares or other reorganizationsecurities; 6.2.18 voluntarily incur any liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $5,000 in the aggregate other than pursuant to the terms of a Contract or Non-U.S Benefit Plan; 6.2.19 sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights; 6.2.20 enter into any agreement, understanding or arrangement with respect to the voting of the securities or the capital equity of the Company or its Subsidiaries; 6.2.21 take any action that would reasonably be expected to delay or impair the obtaining of any consents or approvals of any Governmental Authority to be obtained in connection with this Agreement; 6.2.22 enter into, amend, waive or terminate (other than terminations in accordance with their terms) any Company Affiliate Transaction; or 6.2.23 authorize or agree to do any of the foregoing actions.

Appears in 1 contract

Samples: Merger Agreement (Circon Corp)

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Conduct of the Business by the Company. Unless During the Seller period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Company agrees (unless the Company is required to take such action pursuant to this Agreement or Acquirer shall otherwise give its prior consent in writing which consent shall not be unreasonably withheld) to carry on its business, as such activities relate to the Business, in the usual, regular and ordinary course consistent with past practice, to pay its Liabilities and Taxes consistent with the Company’s past practices (and in any event when due), to pay or perform other obligations when due consistent with the Company’s past practices (other than Liabilities, Taxes and other obligations, if any, contested in good faith through appropriate proceedings), and, to the extent consistent with such business, to use all commercially reasonable efforts and institute all policies required to preserve intact its present business organization, keep available the services of its present key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, independent contractors and other Persons having business dealings with it, all with the express purpose and intent of preserving unimpaired its goodwill and ongoing businesses at the Closing Date. In addition, prior to the Closing, the Company shall, as such activities relate to the Business, cooperate in good faith with Acquirer to facilitate the transition of the Company’s customers and vendors, including, but not limited to, obtaining assignments, consents, and assurances from such customers and vendors with respect to the Acquisition. Except as expressly contemplated by this Agreement, the Company shall not, without the prior written consent of Acquirer, take or agree in writing or otherwise to take, any action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent the Company from performing or cause the Company not to perform its agreements and covenants hereunder or knowingly cause any condition to Acquirer’s closing obligations in Section 7.1 or Section 7.3 not to be unreasonably withheld, conditioned or delayed)satisfied. Without limiting the generality of the foregoing, during the period from the date of this Agreement and continuing until the Pre-Closing Periodearlier of the termination of this Agreement or the Closing, (i) the Company shall cause its officers to report regularly (but in no event less frequently than weekly) to Acquirer concerning the status of the Business, and (ii) except as expressly contemplated by this Agreementset forth in the Disclosure Schedule, the Company shall and shall not do, cause its Subsidiaries to (i) conduct their respective businesses, in all material respects, in the ordinary course of business consistent with past practice; (ii) comply with all Laws applicable to the Company and its Subsidiaries and their respective businesses, assets and employees; and (iii) preserve intact, in all material respects, their respective business organizations, maintain existing relations with all of the Company’s key customers, service providers, suppliers, and creditors, and keep available the services of their respective managers, directors, officers, employees and consultants, to maintain, in all material respects, and to preserve the possession, control and condition of their respective assets, all as consistent with past practice. Without limiting the foregoing, the Company shall not, and shall cause its Subsidiaries to not: 6.2.1 amend, waive or otherwise change, in any respect, permit any of the Company’s or its Subsidiaries’ Organizational Documents except following, as otherwise contemplated herein in connection with the Transaction; 6.2.2 authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities or other securities or interests, including any securities convertible into or exchangeable for any of its equity securities or securities interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such equity securities or other securities or equity interests; 6.2.3 split, combine, recapitalize or reclassify any of its equity interests or issue any other securities in respect thereof or declare, pay or set aside any distribution or other dividend (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its equity securities or securities interests; 6.2.4 incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise), make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, liability or obligation of any Person; 6.2.5 increase the wages, salaries or compensation of any of its employees by more than five percent (5%), or increase bonuses for the foregoing individuals in excess of five percent (5%), or make commitments to advance with respect to bonuses for fiscal year 2024, or materially increase other benefits of any of the foregoing individuals, or enter into, establish, materially amend or terminate any Non-U.S. Benefit Plan with, for or in respect of any current consultant, officer, manager, director or employee, in each case other than as required by applicable Law, pursuant activities relate to the terms Business, without the prior written consent of any such Benefit Plan, or in the ordinary course of business consistent with past practice; 6.2.6 make or rescind any material election relating to Taxes, settle any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as required by applicable Law; 6.2.7 transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve the Intellectual Property or any Intellectual Property related to, or used in, the business and operations of the Company or its Subsidiaries, or disclose to any Person who has not entered into a confidentiality agreement any trade secrets; 6.2.8 terminate or waive or assign any material right under any Contract, or enter into any Contract (A) involving amounts potentially exceeding $5,000 per year, (B) that would be a Contract; or (C) with a term longer than one year that cannot be terminated without payment of a material penalty and upon notice of sixty (60) days or less; 6.2.9 fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice; 6.2.10 establish any new Subsidiary or enter into any new line of business; 6.2.11 fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to the assets, operations and activities of the Company or its Subsidiaries, in an amount and scope of coverage as is comparable to that which are currently in effect; 6.2.12 revalue any of its material assets or make any change in accounting methods, principles or practices, except as approved by its outside auditors; 6.2.13 waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by the Company or its Affiliates) not in excess of $5,000 (individually or in the aggregate), or otherwise pay, discharge or satisfy any claims, liabilities or obligations; 6.2.14 close or materially reduce any activities, or effect any layoff or other personnel reduction or change, at any of its facilities; 6.2.15 acquire, including by merger, consolidation, acquisition of stock or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business; 6.2.16 make capital expenditures in excess of $5,000 (individually or in the aggregate) other than in the ordinary course of business consistent with past practice; 6.2.17 adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization; 6.2.18 voluntarily incur any liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $5,000 in the aggregate other than pursuant to the terms of a Contract or Non-U.S Benefit Plan; 6.2.19 sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights; 6.2.20 enter into any agreement, understanding or arrangement with respect to the voting of the securities or the capital equity of the Company or its Subsidiaries; 6.2.21 take any action that would reasonably be expected to delay or impair the obtaining of any consents or approvals of any Governmental Authority to be obtained in connection with this Agreement; 6.2.22 enter into, amend, waive or terminate (other than terminations in accordance with their terms) any Company Affiliate Transaction; or 6.2.23 authorize or agree to do any of the foregoing actions.Acquirer:

Appears in 1 contract

Samples: Asset Purchase Agreement (Looksmart LTD)

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