Conduct of the Business Pending the Closing Date. The Corporation shall:
(a) conduct its business only in the ordinary course, consistent with past practice;
(b) use its best efforts to (i) preserve the present business operations, organization (including, without limitation, management and the sales force) and goodwill of its business and (ii) preserve the present relationship of the Corporation with Persons having business dealings with the Corporation;
(c) comply with all laws and with all contractual and other obligations applicable to it;
(d) not change its Articles of Incorporation or By-laws;
(e) not issue or contract to issue any stock, securities, options, or debt which is convertible to stock or securities;
(f) not declare or agree to declare or otherwise make any dividend or other distribution or payment in respect of the Stock;
(g) not sell, transfer, assign, pledge, encumber or otherwise dispose of any of its assets, except in the ordinary course of business consistent with past practice;
(h) not acquire any material properties or assets and not sell, assign, transfer, convey, lease or otherwise dispose of any of its material properties;
(i) maintain its present fire and extended coverage insurance or equivalent coverage on all of its assets and on all real and personal property leased to it;
(j) promptly notify the Company of (i) the occurrence of any matter which may have a material adverse effect on its business or its assets, and (ii) any Legal Proceeding commenced by or against it or any Legal Proceeding commenced or threatened relating to the transactions contemplated by this Agreement;
(k) not agree to anything prohibited by this Agreement or anything which would make any of the representations and warranties of the Shareholders or the Corporation in this Agreement or the Related Agreements untrue or incorrect in any material respect.
Conduct of the Business Pending the Closing Date. (a) Except as required or permitted by this Agreement, or otherwise approved in writing by Buyer (which approval shall not be unreasonably withheld, conditioned or delayed), during the period commencing on the date hereof and ending on the Closing Date, Seller will, and will cause Bison LLC to:
(i) operate and maintain the Business in all material respects in the usual, regular and ordinary manner consistent with past practices, and to the extent consistent with such operation and maintenance, preserve the present business organization of the Business;
(ii) maintain its books, accounts and records relating to the Business in the usual, regular and ordinary manner, on a basis consistent with past practice, comply in all Material respects with all laws, rules or regulations of any Governmental Authority and contractual obligations applicable to the Business or to the conduct of the Business and perform all of its Material obligations relating to the Business;
(iii) not waive any Material claims or rights relating to the Business;
(iv) after obtaining Knowledge thereof, give notice to Buyer of any claim or litigation (threatened or instituted) or any other event or occurrence which would reasonably be expected to have a Material Adverse Effect, or which would reasonably be expected to cause Seller to breach any representation, warranty or covenant of Seller contained in this Agreement;
(v) not file an election to have Bison LLC classified as an association taxable as a corporation for U.S. federal, state or local income tax purposes; and
(vi) not agree, whether in writing or otherwise, to take any action which is inconsistent with this Section 4.03(a).
(b) Notwithstanding anything to the contrary in this Section 4.03, prior to the Closing Date, Buyer, on the one hand, and Seller, on the other hand, will act independently of each other in making decisions as to their respective businesses, other than with respect to their current interests in the Business.
Conduct of the Business Pending the Closing Date. The Shareholders and the Company hereby agree that, from the date hereof to the Closing Date, they will:
(a) maintain the Assets in normal good repair, order and condition, and make such capital expenditures as necessary to maintain the Business, in accordance with past practices and sound business judgment;
(b) maintain insurance upon all of its properties and with respect to the conduct of the Business in such amounts and of such kinds to adequately safeguard and protect the Assets and the Business;
(c) not issue or agree to issue any additional shares of common stock or of any other voting security or any rights to acquire any such additional common stock or voting security which would cause a change of control of the Shareholders;
(d) use its best efforts to comply with all laws and material contractual obligations applicable to it and to the conduct of the Business;
(e) not (i) mortgage, pledge or, except in the ordinary course of business, subject to any lien, charge, security interest or other encumbrance any of the Assets (whether tangible or intangible), (ii) sell, assign, transfer, convey, lease or otherwise dispose of, or agree to sell, assign, transfer, convey, lease or otherwise dispose of, any of the Assets outside the ordinary course of business other than that expressly disclosed in the Shareholders' Disclosure Memorandum;
(f) not authorize or consummate any dividends or distributions of assets to its stockholders, any consolidation or merger, purchase of all or substantially all of the assets of any entity, or any other extraordinary corporate transaction other than expressly disclosed in the Shareholders' Disclosure Memorandum;
(g) conduct its business in its usual and ordinary manner.
Conduct of the Business Pending the Closing Date. Seller agrees that, except as required or contemplated by this Agreement and except for any actions taken by Seller of the type set forth in Schedule 4.2, or otherwise consented to by the other parties, during the period commencing on the date hereof and ending on the Closing Date, Seller will take such actions within their control to:
(a) operate the Business only in the usual, regular and ordinary manner, on a basis consistent with past practice and, to the extent consistent with such operation, use commercially reasonable efforts to preserve Meridian’s present business organization and good will intact, and to keep available the services of the present Business Employees;
(b) maintain Meridian’s books, accounts and records relating to the Business in the usual, regular and ordinary manner, on a basis consistent with past practice, comply in all material respects with all laws and contractual obligations applicable to Meridian or to the conduct of the Business, and perform all of its material obligations relating to the Business;
(c) not (i) make any capital expenditures with respect to the Business, (ii) dispose of any of the fixed Company Assets or (iii) modify or change in any material respect or enter into or terminate any material contract relating to the Business, except in the case of clauses (i) and (iii) for actions taken in the ordinary course of business and consistent with past practice;
(d) not (i) permit or allow any of the Company Assets to become subject to any Encumbrances except Permitted Encumbrances, (ii) waive any claims or rights relating to the Business, except in the ordinary course of business and consistent with past practice, (iii) grant any increase in the compensation of Business Employees (including any such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment), except for reasonable increases in the ordinary course of business and consistent with past practice or as a result of contractual arrangements or sales compensation plans existing on the date hereof, (iv) terminate the employment of any Transitioned Employee (as defined in Section 6.1(a)) (except with consent of Buyer, not to be unreasonably withheld, conditioned or delayed), (v) enter into any agreements giving rise to obligations on the part of Meridian, except commitments to purchase materials and other trade obligations in the ordinary course of business and consistent with past practice, or (vi) enter into any agreements giving ri...
Conduct of the Business Pending the Closing Date. Sellers agree that, except pursuant to the prior written consent of Buyer, during the period commencing on the date hereof and ending on the Closing Date, Sellers will:
(a) Operate the Business only in the ordinary course of business consistent with prior practices and in compliance with all laws, rules and regulations applicable thereto;
(b) Maintain customary levels of customer service with respect to the Business and maintain all existing agreements, contracts, property and equipment at customary levels;
(c) Take all actions reasonably necessary and appropriate to preserve, protect and maintain all of the assets of the Business, other than disposable assets, in customary repair, order and condition (reasonable wear and tear excepted);
(d) Make no disposition, other than a disposition of obsolete and/or otherwise unusable assets;
(e) Not sell, transfer, convey or otherwise dispose of, with or without consideration, any assets used or useful in or relating to the Business;
(f) Not acquire any stock or any property or assets of any other person, firm, association, corporation or other business organization usable in the conduct of the Business, or enter into any contract or agreement or other commitment to effect any of the foregoing except in the ordinary course of business;
(g) Not incur any indebtedness for borrowed money or vary the terms of any existing instruments, nor enter into any other material transaction or commitment in connection with the Business;
(h) Not mortgage, pledge or subject to any Lien, lease, security interest or other charge or encumbrance any of the assets of the Business;
(i) Not adopt any employee benefit plan covering employees of the Business;
(j) Provide Buyer with prompt written notice if any customer of the Business notifies any Seller (in writing or otherwise) that such customer intends to terminate services from the Business or to reduce the volume of its services from the Business; and
(k) Not enter into any contract or agreement or other commitment with any third party relating to any acquisition or disposition of all or a portion of the assets used in, or held for use in, connection with the operations of, the Business.
Conduct of the Business Pending the Closing Date. (a) Except as required or permitted by this Agreement, or otherwise approved in writing by Buyer (which approval shall not be unreasonably withheld or delayed) during the period commencing on the date hereof and ending on the Closing Date, Seller will, and will cause NBLLC to (it being understood and agreed that the following provisions shall not apply to actions taken or not taken by Seller or NBLLC with respect to the Yuma Assets):
(i) operate and maintain the Business in all material respects in the usual, regular and ordinary manner consistent with past practices, and to the extent consistent with such operation and maintenance, preserve the present business organization of the Business;
(ii) maintain its books, accounts and records relating to the Business in the usual, regular and ordinary manner, on a basis consistent with past practice, comply in all Material respects with all laws, rules or regulations of any Governmental Authority and contractual obligations applicable to the Business or to the conduct of the Business and perform all of its Material obligations relating to the Business;
(iii) not waive any Material claims or rights relating to the Business;
(iv) after obtaining Knowledge thereof, give notice to Buyer of any claim or litigation (threatened or instituted) or any other event or occurrence which would reasonably be expected to have a Material Adverse Effect, or which could reasonably be expected to cause Seller to breach any representation, warranty or covenant contained in this Agreement;
(v) not file an election to have NBLLC classified as an association taxable as a corporation for U.S. federal, state or local income tax purposes; and
(vi) not agree, whether in writing or otherwise, to take any action which is inconsistent with this Section 4.04(a).
(b) Notwithstanding anything to the contrary in this Section 4.04, prior to the Closing Date, Buyer, on the one hand, and Seller, on the other hand, will act independently of each other in making decisions as to their respective businesses.
Conduct of the Business Pending the Closing Date. Except as required or permitted by this Agreement, as set forth on Schedule 4.03, or otherwise approved in writing by Buyer (which approval shall not be unreasonably withheld, conditioned or delayed), during the period commencing on the date hereof and ending on the Closing Date, Seller will, and will, to the extent possible having regard to the provisions of the PNGTS Partnership Agreement, cause PNGTS to:
Conduct of the Business Pending the Closing Date. Sellers agree that, except pursuant to the prior written consent of Buyer, during the period commencing on the date hereof and ending on the Closing Date, Sellers will:
(a) Operate the Companies only in the usual, regular and ordinary manner and, to the extent consistent with such operation, use reasonable efforts to preserve the present relationships with persons having business dealings with Sellers;
(b) Maintain customary levels of customer service with respect to the Companies;
(c) Take all actions reasonably necessary and appropriate to preserve, protect and maintain all of the assets of the Companies other than disposable assets in customary repair, order and condition (reasonable wear and tear excepted);
(d) Not sell, transfer, convey or otherwise dispose of, with or without consideration, any of the assets of the Companies, other than in the ordinary course of business consistent with past practice;
(e) Not mortgage, pledge or subject to any Lien, lease, security interest or other charge or encumbrance any of the assets of the Companies, other than in the ordinary course of business consistent with prior practice;
(f) Not adopt any employee benefit plan covering employees of the Companies;
(g) Not enter into any contract or agreement or other commitment with any third party relating to any acquisition or disposition of all or a portion of the assets used in, or held for use in connection with the operations of, the Companies; or
(h) Not expend sums or obligate the company for an amount in excess of $25,000 in the aggregate (outside of payments in the ordinary course of the Business for its on-going operations as operated on December 31, 2006 without the prior approval of the Buyer.
Conduct of the Business Pending the Closing Date. The Shareholder and the Company hereby agree that, from the date hereof to the Closing Date, they will:
(a) maintain the Assets in good repair, order and condition, and make such capital expenditures as necessary to maintain the Business, in accordance with past practices and sound business judgment;
(b) maintain insurance upon all of its properties and with respect to the conduct of the Business in such amounts and of such kinds comparable to that in effect on the date hereof;
(c) not issue or agree to issue any additional shares of common stock or of any other voting security or any rights to acquire any such additional common stock or voting security which would cause a change of control of Shareholder;
(d) use its best efforts to materially comply with all laws and material contractual obligations applicable to it and to the conduct of the Business;
(e) not (i) mortgage, pledge or, except in the ordinary course of business, subject to any lien, charge, security interest or other encumbrance any of the Assets
Conduct of the Business Pending the Closing Date. Except as expressly permitted by this Agreement, or in the Ordinary Course of Business, or unless otherwise consented to or approved in advance and in writing by parent, during the period commencing on the date hereof and ending on the Closing Date:
(a) Seller shall cause the Business to be conducted in a manner consistent with past practices (subject, in any event, to the provisions of paragraph (b) below), shall use its reasonable commercial efforts to preserve intact the business organization, and availability of services of the Employees, and maintain satisfactory relationships with vendors, manufacturers, licensors, suppliers, distributors, customers, and clients of the Business; and
(b) In the operation and conduct of the Business, Seller shall not (i) enter into any material contract or commitment outside the Ordinary Course of Business, including, without limitation, for any acquisition or disposition of a material amount of assets; (ii) terminate operations at any site where the operations of the Business are currently being conducted or commence operations for the Business at any site where operations are not currently being conducted; (iii) enter into, terminate, assign or sublease any lease of real property relating to the Business; (iv) subject or allow the Acquired Assets to be subjected to any Encumbrance other than Permitted Encumbrances; (v) agree to the settlement of any litigation; or (vi) agree, in writing or otherwise, to take any of the foregoing actions.
(c) Seller shall not take any action, engage in any transactions, or enter into any agreement that would cause any of the representations or warranties set forth in Section 2.1 hereof to be untrue in any material respect as of the Closing Date.
