Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, the Seller shall, and shall cause the Companies to: (i) conduct the respective businesses of the Companies only in the usual, ordinary course consistent with past practice; (ii) use its best efforts to (A) preserve its present business operations, organization (including, without limitation, management and the sales force) and goodwill of the Companies and (B) preserve its present relationship with Persons, customers, suppliers, distributors and others having business dealings with the Companies; (iii) maintain (A) all of the assets and properties of the Companies in their current condition and in good working order, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Companies in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (A) maintain the books, accounts and records of the Companies in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Companies and continue to perform its obligations under the Material Contracts; and (v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws. (b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, the Seller shall not, and shall cause the Companies not to: (i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Companies or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Companies;
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement Agreement, or with the prior written consent of the Purchaser, the Seller Sellers shall, and shall cause the Companies Company to:
(i) conduct the respective businesses of the Companies Company only in the usual, ordinary course consistent with past practice;
(ii) use its best efforts to (A) preserve its present business operations, organization (including, without limitation, management and the sales force) and goodwill of the Companies Company and (B) preserve its present relationship with Persons, customers, suppliers, distributors and others Persons having business dealings with the CompaniesCompany;
(iii) maintain (A) all of the assets and properties of the Companies Company in their current condition and in good working ordercondition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Companies Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(A) maintain the books, accounts and records of the Companies Company in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Companies and continue to perform its obligations under the Material ContractsCompany; and
(v) comply in all material respects with applicable lawslaws and regulations.
(vi) Forebear from (i) soliciting, includinginitiating, without limitationor encouraging the submission of any proposal or offer from any person relating to the acquisition of any capital stock or other voting securities of the Company, Environmental Lawsor any assets of the Company (including any acquisition structured as a merger, consolidation, share exchange or other business combination), (ii) participating in any discussions or negotiations regarding, furnishing any information with respect to, assisting or participating in, or facilitating in any other manner any effort or attempt by any person to do or seek any of the foregoing, or (iii) taking any other action that is inconsistent with this Agreement or the transactions contemplated hereby and that has the effect of avoiding the Closing contemplated hereby. The Sellers or the Company shall notify Purchaser immediately if any person makes any proposal, offer, inquiry, or contact with respect to any of the foregoing.
(vii) permit the Company to enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(viii) forbear from doing anything prohibited by this Section 5.2 or anything which would make any of the representations and warranties of the Company or Sellers in this Agreement untrue or incorrect in any material respect.
(b) Except as otherwise expressly contemplated by this Agreement Agreement, or with the prior written consent of the PurchaserCompany, the Seller Purchaser shall not, and shall cause the Companies not to: :
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Companies Purchaser or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the CompaniesPurchaser;
(ii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Purchaser other than to effectuate the transactions contemplated by this Agreement;
(iii) amend the articles of incorporation or by-laws of the Purchaser other than to effectuate the transaction contemplated by this Agreement;
(iv) (A) materially increase the annual level of compensation of any employee of the Purchaser, (B) increase the annual level of compensation payable or to become payable by the Purchaser to any of its executive officers, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, or officers of the Purchaser, or (D) enter into any employment agreement (or amend any such agreement) to which the Purchaser is a party or involving a director or officer of the Purchaser in his or her capacity as a director or officer of the Purchaser;
(v) subject to any Lien (except for leases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the properties or assets (whether tangible or intangible) of the Purchaser;
(vi) acquire any material properties or assets or sell, assign, transfer, convey, lease or otherwise dispose of any of the material properties or assets (except for fair consideration in the ordinary course of business consistent with past practice) of the Purchaser;
(vii) enter into, modify or terminate any labor or collective bargaining agreement of the Purchaser or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Purchaser;
(viii) permit the Purchaser to enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(ix) permit the Purchaser to make any investments in or loans to any Affiliate; or
(x) agree to do anything prohibited by this Section 5.2 or anything which would make any of the representations and warranties of the Purchaser in this Agreement untrue or incorrect in any material respect.
Appears in 1 contract
Samples: Share Exchange Agreement (Sentient Brands Holdings Inc.)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, the Seller Sellers shall, and shall cause the Companies Company to:
(i) conduct the respective businesses of the Companies Company only in the usual, ordinary course consistent with past practice;
(ii) use its best efforts to (A) preserve its present business operations, organization (including, without limitation, management and the sales force) and goodwill of the Companies Company and (B) preserve its present relationship with Persons, customers, suppliers, distributors and others Persons having business dealings with the CompaniesCompany;
(iii) maintain (A) all of the assets and properties of the Companies Company in their current condition and in good working ordercondition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Companies Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(iv) (A) maintain the books, accounts and records of the Companies Company in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Companies and continue to perform its obligations under the Material ContractsCompany; and
(v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, the Seller Sellers shall not, and shall cause the Companies Company not to: :
(i) declaretransfer, set asideissue, make sell or pay dispose of any dividend shares of capital stock or other distribution in respect securities of the capital stock of the Companies Company or repurchasegrant options, redeem warrants, calls or other rights to purchase or otherwise acquire any outstanding shares of the capital stock or other securities ofof the Company;
(ii) effect any recapitalization, reclassification, stock split or other ownership interests in, like change in the Companiescapitalization of the Company; or
(iii) amend the certificate of incorporation or by-laws of the Company;
Appears in 1 contract
Samples: Share Exchange Agreement (Golden Key International Inc)
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the PurchaserCompany or Jaguar, the Seller shallShareholders shall (with respect to the Company only), and shall cause the Companies Company to:, and Jaguar shall (with respect to Jaguar only):
(i) conduct the respective businesses business of the Companies Company and Jaguar only in the usual, ordinary course consistent with past practice;
(ii) use its their best efforts to (A) preserve its their present business operations, organization (including, without limitation, management and the sales force) and goodwill of the Companies Company and Jaguar, and (B) preserve its their present relationship with Persons, customers, suppliers, distributors and others Persons having business dealings with the CompaniesCompany and Jaguar;
(iii) maintain (A) all of the assets and properties of the Companies Company and Jaguar in their current condition and in good working ordercondition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Companies Company and Jaguar in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(A) maintain the books, accounts and records of the Companies Company and Jaguar in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Companies Company and continue to perform its obligations under the Material ContractsJaguar; and
(v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the PurchaserCompany or Jaguar, the Seller Shareholders shall notnot (with respect to the Company only), and shall cause the Companies Company not to: , and Jaguar shall not (with respect to Jaguar only):
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Companies Company or Jaguar or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the CompaniesCompany or Jaguar;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or Jaguar or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or Jaguar;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company or Jaguar;
(iv) amend the certificate of incorporation or by-laws of the Company or Jaguar;
(A) materially increase the annual level of compensation of any employee of the Company or Jaguar, (B) increase the annual level of compensation payable or to become payable by the Company or Jaguar to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, director or consultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Company Unaudited Financials or the Jaguar Financial Statements, as the case may be, (D) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or Jaguar or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company or Jaguar is a party or involving a director, officer or employee in his or her capacity as a director, officer or employee of the Company or Jaguar;
(vi) except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person;
(vii) subject to any Lien (except for leases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the properties or assets (whether tangible or intangible) of the Company or the Jaguar;
(viii) acquire any material properties or assets or sell, assign, transfer, convey, lease or otherwise dispose of any of the material properties or assets (except for fair consideration in the ordinary course of business consistent with past practice) of the Company or Jaguar;
(ix) cancel or compromise any debt or claim or waive or release any material right of the Company or Jaguar except in the ordinary course of business consistent with past practice;
(x) enter into any commitment for capital expenditures of the Company or Jaguar in excess of $10,000 for any individual commitment and $25,000 for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or Jaguar or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company or Jaguar;
(xii) introduce any material change with respect to the operation of the Company or Jaguar, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(xiii) permit the Company or Jaguar to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xiv) permit the Company or Jaguar to enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xv) except for transfers of cash pursuant to normal cash management practices, permit the Company or Jaguar to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with, any Shareholder or any Affiliate of any Shareholder or Affiliate of Jaguar; or
(xvi) agree to do anything prohibited by this Section 6.2 or anything which would make any of the representations and warranties of the Company, the Shareholders or Jaguar in this Agreement or the Shareholder Documents or Jaguar Documents untrue or incorrect in any material respect as of any time through and including the Effective Time.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, the Seller Representing Sellers shall, and shall cause the Companies Company to:
(i) conduct the respective businesses business of the Companies Company only in the usual, ordinary course consistent with past practice;
(ii) use its best efforts to (A) preserve its present business operations, organization (including, without limitation, management and the sales force) and goodwill of the Companies Company and (B) preserve its present relationship with Persons, customers, suppliers, distributors and others Persons having business dealings with the CompaniesCompany;
(iii) maintain (A) all of the assets and properties of the Companies Company in their current condition and in good working ordercondition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Companies Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(A) maintain the books, accounts and records of the Companies Company in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Companies and continue to perform its obligations under the Material ContractsCompany; and
(v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws.
(b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Purchaser, the Seller Representing Sellers shall not, and shall cause the Companies Company not to: :
(i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Companies Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the CompaniesCompany;
(ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company;
(iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company;
(iv) amend the certificate of incorporation or by-laws of the Company;
(A) materially increase the annual level of compensation of any employee of the Company, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee, director or consultant, other than in the ordinary course consistent with past practice and in such amounts as are fully reserved against in the Financial Statements, (D) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which the Company is a party or involving a director, officer or employee of the Company in his or her capacity as a director, officer or employee of the Company;
(vi) except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person;
(vii) subject to any Lien (except for leases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the properties or assets (whether tangible or intangible) of the Company;
(viii) acquire any material properties or assets or sell, assign, transfer, convey, lease or otherwise dispose of any of the material properties or assets (except for fair consideration in the ordinary course of business consistent with past practice) of the Company;
(ix) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business consistent with past practice;
(x) enter into any commitment for capital expenditures of the Company in excess of $1,000 for any individual commitment and $5,000 for all commitments in the aggregate;
(xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company;
(xii) introduce any material change with respect to the operation of the Company, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products;
(xiii) permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice;
(xiv) permit the Company to enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person;
(xv) except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with, any Seller or any Affiliate of any Seller; or
(xvi) agree to do anything prohibited by this Section 7.2 or anything which would make any of the representations and warranties of the Representing Sellers in this Agreement or the Seller Documents untrue or incorrect in any material respect as of any time through and including the Effective Time.
Appears in 1 contract
Conduct of the Business Pending the Closing. (a) Except as otherwise expressly contemplated by From the date of this Agreement until the Closing or with the prior written consent earlier termination of this Agreement (the Purchaser“Pre-Closing Period”), except as consented to in writing by Buyer or as expressly set forth in this Agreement, Sellers and the Seller shall, and Company shall cause the Companies to:
(i) conduct the respective businesses of the Companies only Company to operate in the usual, ordinary course consistent with past practice;
(ii) use its best efforts to (A) preserve its present business operations, organization Ordinary Course of Business (including, without limitation, management with respect to the collection of accounts receivable and payments of accounts payable). Without limiting the generality of the foregoing, except as set forth on Schedule 8.1 hereto or as otherwise specifically contemplated by this Agreement or consented to in writing by Buyer:
(i) Sellers and the sales forceCompany shall use commercially reasonable efforts to (a) and preserve the business of the Company substantially intact, (b) to keep available the services of the Employees, (c) to preserve the goodwill of the Companies and (B) preserve its present relationship with Persons, customers, suppliers, distributors providers, plan members and others having business dealings or relations with the CompaniesCompany, (d) maintain its books and records consistent with past practices and applicable Law in all material respects, (e) pay all liabilities and obligations of the Company in the Ordinary Course of Business, and (f) maintain reserves and statutory net worth sufficient to be in compliance with all applicable Laws, including the HMO Statute;
(ii) the Company shall maintain insurance coverage reasonably appropriate for the conduct of its business and consistent with past practices;
(iii) maintain (A) all Sellers and the Company shall not, directly or indirectly, engage in any act or omission that results in a breach of any of the assets and properties representations, warranties, agreements or covenants made by Sellers or the Company in this Agreement as of the Companies in their current condition and in good working order, ordinary wear and tear excepted and (B) insurance upon all Signing Date or as brought down as of the properties and assets of the Companies in such amounts and of such kinds comparable to that in effect on the date of this Agreement;
(A) maintain the books, accounts and records of the Companies in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Companies and continue to perform its obligations under the Material ContractsClosing Date; and
(viv) comply in all The Company shall not make a material respects capital expenditure, distribution or dividend, enter into or amend any Material Contract, enter into any management, administrative services or marketing contract with applicable lawsrespect to its business, including, without limitation, Environmental Laws.
(b) Except as otherwise expressly contemplated by this Agreement or enter into or amend a contract with the prior written consent Sellers or an Affiliate of the Purchaser, Company or Sellers (other than the Seller shall not, and shall cause the Companies not to: (i) declare, set aside, make or pay any cash dividend or other distribution described in respect of the capital stock of the Companies or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Companies;Section 3.6).
Appears in 1 contract
