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 rise to obligations on the part of Meridian relating to capital expenditures except commitments made in the ordinary course of business; (e) replenish raw materials, components and supplies of the Business in the ordinary course of business and consistent with past practice; and (f) provide all goods and services related to the Business in the ordinary course of business and consistent with past practice.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bio Reference Laboratories Inc)
Conduct of the Business Pending the Closing Date. The 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 or approved in writing by the other partiesPurchaser, during the period commencing on the date hereof and ending on the Closing Date, Seller will take such actions within their control toit will:
(a) operate and maintain the Business in all material respects only in the usual, regular and ordinary manner, on a basis manner consistent with past practice and, to the extent consistent with such operationoperation and maintenance, use commercially reasonable its best efforts to preserve Meridian’s the present business organization and good will of the Business intact, and to keep available the services of the present Business EmployeesEmployees (subject to the Purchaser's rights to direct the Seller to terminate any Employee pursuant to Section 8.10) and preserve its present relationships with all persons having business dealings with the Business;
(b) maintain Meridian’s 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 Laws and contractual obligations applicable to Meridian the Business or to the conduct of the Business, Business and perform all of its material obligations relating to the Business;
(c) not (i) make modify or change in any capital expenditures material respect any of the Assets or dispose of any material Asset except for (A) the sale of inventory in the ordinary course of business, consistent with respect to past practice, and (B) any Assets that in the Businessordinary course of business are replaced with substantially similar Assets, (ii) dispose of enter into any Contract, commitment or other agreement that would be material to the operation of the fixed Company Business or use of the Assets or, except as expressly contemplated by this Agreement or expressly contemplated by or required pursuant to their respective terms, modify or change in any material respect any obligation under any such Contract, commitment or agreement, (iii) modify or change in any material respect any obligation under any License, (iv) modify or enter into or terminate change in any material contract relating to respect the manner in which it markets and sells the products produced or services by the Business, except or (v) agree, whether in writing or otherwise, to do any of the case of clauses (i) and (iii) for actions taken in the ordinary course of business and consistent with past practiceforegoing;
(d) not (i) permit or allow any of the Company Assets to become subject to any Encumbrances except Permitted EncumbrancesLiens, (ii) waive any material 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 or benefits of Business any of the Seller's 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 rise to obligations on the part of Meridian relating to capital expenditures except commitments made in the ordinary course of business;pursuant
(e) replenish raw materials, components and supplies not take any action that would result in the representations with respect to the Seller as contained in this Agreement not being true as of the Business in Closing Date if the ordinary course of business and consistent with past practice; and
(f) provide all goods and services related to representations were given for the Business in period from the ordinary course of business and consistent with past practice.date hereof through the Closing Date;
Appears in 1 contract
Conduct of the Business Pending the Closing Date. Seller agrees The Sellers agree that, except as required or contemplated by this Agreement and except for any actions taken by Seller the Sellers of the type set forth in Schedule EXHIBIT 4.2, or otherwise consented to by the other partiesBuyer, during the period commencing on the date hereof and ending on the Closing Date, Seller will take such actions within their control tothey will:
(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 efforts, consistent with past practice, to preserve Meridian’s the Division's present business organization and good will intact, and to keep available the services of the Division Employees and preserve its present Business Employeesrelationships with persons having business dealings with the Division;
(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 that are 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 the Business consistent with past practicepractices;
(dc) 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 Division 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 the Business and consistent with past practice or as a result of contractual arrangements or sales compensation plans existing on the date hereof, hereof or (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), (viii) enter into any agreements Contracts giving rise to specific obligations on with respect to the part Division in excess of Meridian$1,000,000, except commitments Contracts to purchase materials Materials or other Inventory and other trade obligations in the ordinary course of business the Business and Contracts entered into in connection with quotes or proposals that either of the Sellers has delivered to customers prior to the date of this Agreement;
(d) do the following in respect of the Division, in each case in a manner consistent with past practice: keep in full force and effect all Trade Rights; maintain the Assets in normal repair, order and condition consistent with current needs; replace in accordance with past practices inoperable, worn out or (vi) enter into any agreements giving rise to obligations on the part of Meridian relating to capital expenditures except commitments made obsolete assets; in the ordinary course event of business;
(e) replenish raw materialsa casualty, components and supplies of the Business in the ordinary course of business and consistent with past practice; and
(f) provide all goods and services related loss or damage to any material Assets prior to the Business in Closing Date, either repair or replace such damaged property or use the ordinary course proceeds of any insurance (other than business and consistent with past practiceinterruption coverage, which shall be subject to SECTION 8.
Appears in 1 contract
Conduct of the Business Pending the Closing Date. Seller agrees The Stockholders agree that, except pursuant to the prior written consent of Purchaser, as required contemplated hereby or contemplated by this Agreement and except for any actions taken by Seller of the type as set forth in on Schedule 4.2, or otherwise consented to by the other parties4.2 hereto, during the period commencing on the date hereof and ending on the Closing Date, Seller they will take such actions within their control cause the Companies to:
(a) operate the Business Operate their respective businesses only in the usual, regular and ordinary manner, on a basis consistent with past practice manner and, to the extent consistent with such operation, use commercially reasonable efforts to preserve Meridian’s the present relationships with persons having business organization and good will intact, dealings with any of them and to keep available the services of the their present Business Employeesofficers and employees;
(b) Take all actions reasonably necessary and appropriate to preserve, protect and 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 Businesstheir assets other than disposable assets in customary repair, order and condition, reasonable wear and tear excepted;
(c) not (i) make Make no disposition, other than the disposition of obsolete and otherwise unusable assets, including any capital expenditures with respect to the Businesssale or transfer, (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 Businesstheir assets, except in the case of clauses (i) and (iii) for actions taken other than sales in the ordinary course of business and consistent with past practice;
(d) not Make no amendment to their charter or bylaws in any manner;
(ie) permit Make no change in the number of shares of their capital stock issued and outstanding, and grant or allow give no option, warrant or any other right to purchase or to convert any obligation into shares of their capital stock;
(f) Not declare, pay or make a dividend or other distribution or payment in respect of shares of their capital stock other than dividends on the Series B Preferred Stock or purchase or redeem any of the Company Assets to become subject to such shares or dispose of any Encumbrances except Permitted Encumbrancesevidence of indebtedness or other securities of any other person;
(g) Not merge or consolidate with any other corporation, (ii) waive sell all or substantially all of their assets, or acquire any claims or rights relating to the Businessstock or, except in the ordinary course of business and consistent with past practice, (iii) grant any increase in the compensation property or assets of Business Employees (including any such increase pursuant to any bonusother person, pensionfirm, profit-sharing association, corporation or other plan business organization, 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 contract or agreement or other commitment to obligations on effect any of the part of Meridian, foregoing 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 rise to obligations on the part of Meridian relating to capital expenditures except commitments made in the ordinary course of business;
(eh) replenish raw materialsNot incur any indebtedness for borrowed money except in accordance with Building Product's revolving line of credit or vary the terms of any existing debt securities, components and supplies nor issue or sell any debt securities, nor enter into any other material transaction or commitment;
(i) Not mortgage, pledge or subject to any lien, lease, security interest or other charge or encumbrance (other than Permitted Liens) any of the Business its properties or assets, tangible or intangible, other than in the ordinary course of business and consistent with past prior practice; and;
(fj) provide all goods and services related Except as may occur in the ordinary course of business, not discharge or satisfy any lien or encumbrance or pay or satisfy any material obligation or liability (fixed or contingent) or compromise, settle or otherwise adjust any material claim or litigation;
(k) Not grant to any director, officer, employee or consultant any increase in compensation in any form (other than pursuant to existing employment agreements), or any severance or termination pay, or enter into or vary the Business terms of any employment agreement with any such person except performance increases in the ordinary course of business and consistent to employees who do not participate in the Company's management bonus plan;
(l) Not make any capital expenditures, or enter into any commitment to make, on any particular capital item or series of related items that exceed(s) $50,000 or make aggregate capital expenditures in excess of $250,000 except that Building Products may make those capital expenditures specified by Xxxxxx Xxxx in his letter to Xxxx Xxxxxx dated March 24, 1997, a copy of which is attached as Annex I to Schedule 4.2 hereof;
(m) Not adopt, amend in any material respect or terminate, any Plan or other employee benefit program of general applicability; and
(n) Not engage in any transaction with past practicethe Stockholders.
Appears in 1 contract
Conduct of the Business Pending the Closing Date. Seller agrees that, except (a) Except as required or contemplated permitted by this Agreement and except for any actions taken by Seller of the type Agreement, as set forth in on Schedule 4.24.03, or otherwise consented to approved in writing by the other partiesBuyer (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 take such actions within their control Sellers will, to the extent they have the right to do so pursuant to the Iroquois Partnership Agreement, cause each Iroquois Entity to:
(ai) operate and maintain the Business only in all material respects in the usual, regular and ordinary manner, on a basis manner consistent with past practice andpractices, and to the extent consistent with such operationoperation and maintenance, use commercially reasonable efforts to preserve Meridian’s the present business organization and good will intact, and to keep available the services of the present Business EmployeesBusiness;
(bii) maintain Meridian’s 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 Material respects with all laws laws, rules or regulations of any Governmental Authority and contractual obligations applicable to Meridian the Business or to the conduct of the Business, Business and perform all of its material Material obligations relating to the Business;
(ciii) 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 Material claims or rights relating to the Business;
(iv) after obtaining Knowledge thereof, except 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 (i) file an election to have Iroquois classified as an association taxable as a corporation for U.S. federal, state or local income tax purposes or change any Tax election or Tax method of accounting or make any new Tax election or adopt any new Tax method of accounting, (ii) make any settlement of or compromise any Tax liability, (iii) surrender any right to claim a refund of Taxes, (iv) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or (v) take any other action outside the ordinary course of business and consistent with past practice, (iii) grant that would have the effect of increasing the Tax liability of Iroquois or its direct or indirect owners for any increase in period after 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 Closing Date;
(vi) enter into establish or become obligated under any agreements giving rise to obligations on the part collective bargaining agreement or other Contract with a labor union or representative of Meridian relating to capital expenditures except commitments made in the ordinary course of business;
(e) replenish raw materials, components and supplies of the Business in the ordinary course of business and consistent with past practicean Iroquois Entity; and
(fvii) provide all goods and services related 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 Business contrary in this Section 4.03, prior to the Closing Date, Buyer, on the one hand, and Sellers, 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 ordinary course of business and consistent with past practiceBusiness.
Appears in 1 contract
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 toThe Corporation shall:
(a) operate the Business conduct its business only in the usualordinary course, 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;
(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;
(ie) permit not issue or allow contract to issue any stock, securities, options, or debt which is convertible to stock or securities except as set forth in Exhibit N hereto;
(f) not declare or agree to declare or otherwise make any dividend or other distribution or payment in respect of the Stock except as set forth in the buy-sell agreement among the Shareholders a copy of which is included in Exhibit N hereto (the "Buy-Sell Agreement");
(g) not sell, transfer, assign, pledge, encumber or otherwise dispose of any of the Company Assets to become subject to any Encumbrances except Permitted Encumbrances, (ii) waive any claims or rights relating to the Businessits assets, except in the ordinary course of business and 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;
(iiii) grant 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 increase 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.
(l) not agree, in the compensation of Business Employees (including any such increase pursuant Buy-Sell Agreement or otherwise, to any bonus, pension, profit-sharing agreement which would prevent the fulfillment of the obligations of the Shareholders and/or the Corporation (i) with respect to the Closing in Escrow or other plan the Closing and sale of the Stock as contemplated by this Agreement.
(m) not be a party to 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 employment agreement with any employee of Deadline Express or the Corporation except an agreement which by its terms terminates upon the Closing in a manner which will not obligate the Corporation in any respect to obligations on such employee after 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 rise to obligations on the part of Meridian relating to capital expenditures except commitments made in the ordinary course of business;
(e) replenish raw materials, components and supplies of the Business in the ordinary course of business and consistent with past practice; and
(f) provide all goods and services related to the Business in the ordinary course of business and consistent with past practiceClosing.
Appears in 1 contract
Samples: Shareholder Agreement (Dispatch Management Services Corp)
