Conduct of the Companies. (a) From the date hereof until the Effective Time or until the earlier termination of this Agreement (the “Interim Period”), Seller shall not, and shall cause the Acquired Companies not to, enter into (or agree to enter into) any transaction with respect to the Purchased Securities, except as contemplated by this Agreement (including, without limitation, Section 6.2(c)) or with the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed. During the Interim Period, except as otherwise contemplated by this Agreement, set forth on Schedule 6.1(a) or consented to in writing by Purchaser, Seller shall, and shall cause the Acquired Companies to: (i) conduct the Business in the ordinary course of business; (ii) use commercially reasonable efforts to preserve intact the Business and to keep available the services of the Transferred Employees (as defined below), provided, that Seller and its Affiliates shall have no obligation to pay any Transferred Employee any stay or retention bonus or similar payment; and (iii) use commercially reasonable efforts to preserve the goodwill of, and maintain satisfactory relationships with, all material customers, suppliers, distributors, lessors, tenants, creditors, debtors, employees, consultants and agents of the Business.
(b) Without limiting the foregoing, during the Interim Period, the Acquired Companies will not take any action or omit to take any action that would, if such action or omission occurred between December 31, 2020 and the date hereof, constitute a breach of the representations and warranties contained in Section 4.5.
(c) Notwithstanding the foregoing or any other provision of this Agreement, Purchaser shall not have the right, directly or indirectly, to control or direct the operations of Seller or any of the Acquired Companies prior to the Effective Time. During the Interim Period, Seller and the Acquired Companies shall grant Purchaser, upon reasonable notice to Seller, reasonable access to any employee of the Acquired Companies for either in-person, phone or video meetings during normal business hours.
Conduct of the Companies. From and after the date hereof until the earlier of the Closing or the termination of this Agreement pursuant to ARTICLE XI, each Company shall, and ---------- the Seller shall cause each Company to:
(i) conduct its business substantially as presently operated and only in the ordinary course consistent with past practice;
(ii) not enter into any transaction other than in the ordinary course of business, or any transaction which is not at arms-length with unaffiliated third Persons, or any transaction with any affiliated third Person;
(iii) not dispose of any material assets;
(iv) use commercially reasonable efforts to (A)maintain its business, assets, relations with present employees, customers and suppliers, licenses and operations as an ongoing business and preserve its goodwill, in accordance with past custom and (B) to satisfy each of the closing conditions set forth in ARTICLE IX; ----------
(v) not issue or sell any shares of any capital stock or issue or sell any securities convertible into, exercisable or exchangeable for or options or warrants to purchase or rights to subscribe for, any shares of any of its capital stock, or enter into any agreement, contract or other commitment to do any of the foregoing;
(vi) not declare or pay any dividend or distribution on or with respect to its capital stock (other than dividends payable prior to Closing pursuant to SECTION 8.11), not change the number of authorized shares of ------------ its capital stock or reclassify, combine, split, subdivide or redeem or otherwise repurchase any of its capital stock, or issue, deliver, pledge or encumber any additional capital stock or other securities equivalent to or exchangeable for capital stock or enter into any Contract to do any of the foregoing;
(vii) not take or omit to take any action which would result in the representations and warranties contained in this Agreement and the Related Documents being untrue on the Closing Date, other than such action as shall have been previously agreed to in writing by the parties hereto or is otherwise expressly contemplated herein; and
(viii) not delay or postpone the payment of accounts payable and other obligations and liabilities or accelerate the collection of accounts receivable, other than in the ordinary course of business consistent with past custom and practice.
Conduct of the Companies. Except as contemplated by this Agreement, during the period from the Effective Date to the Closing Date, the Members will cause the Companies to conduct their business and operations in the ordinary course and, to the extent consistent therewith, to use reasonable efforts to preserve their respective current relationships with customers, employees, suppliers and others having business dealings with them. Accordingly, and without limiting the generality of the foregoing, during the period from the date of this Agreement to the Closing Date, without the prior written consent of FAAC, neither the Companies or the Members will take, and the Members will not permit the Companies to take, any action that would cause the representations set forth in Section 3.35 not to be true as of the Closing Date, except as expressly contemplated by this Agreement.
Conduct of the Companies. Except as set forth in Schedule 5.3 or Schedule 3.13 or as may be required in connection with the other provisions of this Agreement or the Transaction Documents, until the Closing, Seller shall not permit any Company to do any of the following without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed (except with respect to clause (a), (b)(A), (b)(C), (c), (h), (i) or (l) of this Section 5.3 or, to the extent related to such clauses, clause (m) of this Section 5.3)):
(a) amend its Organizational Documents;
(b) (A) issue, transfer, sell, dispose of, pledge, encumber (other than any Permitted Interest Encumbrances) any equity interest in any Company, (B) make or declare any non-cash dividend or distribution with respect to any of the capital stock (or any security convertible into or exchangeable for any of such capital stock) or other equity interest in any Company, or (C) redeem or otherwise acquire any shares of the capital stock (or any security convertible into or exchangeable for any of such capital stock) or other equity interest in any Company;
(c) except for indebtedness (or guarantees of such indebtedness) to or for another Company, incur or assume a Loan or incur, create or assume any Lien with respect to any of the Company Assets;
(d) make any change in any method of accounting or accounting principles other than those required by the Accounting Principles;
(e) acquire by merger, consolidation or purchase of equity interests, or by purchasing a substantial portion of the assets of, or by any other manner (other than by any third Person non-consent elections), any interests in a corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets (other than inventory) that are in excess of Five Hundred Thousand Dollars ($500,000) in the aggregate;
(f) to the extent relating to Seller Taxes, (i) make, change or rescind any material election relating to Taxes, (ii) make any change in any material Tax reporting principles, methods or policies, (iii) file any material amended Tax Return or claim for refund, (iv) settle or compromise any material liability with respect to Taxes, (v) surrender any right to claim a refund of material Taxes, (vi) enter into any closing agreement affecting any liability with respect to material Taxes or material refund or (vii) consent to any extension or waiver of the limitation period applicable to any materia...
Conduct of the Companies. During the Pre-Closing Period, each Company shall, except to the extent expressly contemplated by this Agreement or as consented to by Xxxxx in writing:
(a) use commercially reasonably efforts to conduct the Business substantially as presently operated and only in the ordinary course consistent with the Company’s practices over the month preceding the Closing;
(b) not enter into (i) any transaction other than in the ordinary course of business, (ii) any transaction that is not at arms-length with unaffiliated third Persons or (iii) any transaction with any Affiliate;
(c) not dispose of, lease, license, pledge, mortgage or otherwise transfer any material assets used in or required or useful for the Business, except sales of Inventory in the ordinary course of business;
(d) use commercially reasonable efforts to (i) maintain its operations, business, assets, relations with employees, customers and suppliers and Permits and preserve the related goodwill in accordance with the Company’s practices over the month preceding the Closing and (ii) satisfy each of the closing conditions set out in Section 6.1;
(e) not enter into any Contract (or series of related Contracts) or amendment of any Contract, in each case involving an aggregate amount in excess of US$100,000 or that would be required to be disclosed in Schedule 3.12;
(f) not increase or promise to increase the compensation payable to the officers, directors or employees of the Business (other than normal compensation reviews and raises consistent with past practices);
(g) not acquire or agree to acquire by merging or consolidating with, or by purchasing any material portion of the capital stock or limited liability company, partnership or other equity interests of or assets of, or by any other manner, any business or any Person; or
(h) not authorize any of the foregoing or enter into any agreement to do any of the foregoing.
Conduct of the Companies. During the period from the date of this Agreement and continuing until the Closing or the earlier termination of the Agreement pursuant to Section 11 (the “Pre-Closing Period”), the Company agrees as to itself and the other Company Entities that, except (i) as expressly contemplated or permitted by this Agreement or the Schedules, (ii) as required by applicable Law or applicable COVID-19 Measures, or (iii) to the extent that the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed:
(a) The Company shall, and shall cause each other Company Entity to, use commercially reasonable efforts to carry on their respective businesses in the usual, regular and ordinary course in all material respects, in substantially the same manner as heretofore conducted, and shall use commercially reasonable efforts to preserve intact their present lines of business and preserve their relationships (contractual or otherwise) with customers, suppliers and others having business dealings with them (including, without limitation, through ordinary course renewals, negotiations with and amendments to such relationships);
(b) the Company shall not (A) declare or pay any dividends on or make other distributions in respect of any of its or their equity securities (other than Tax distributions), (B) split, combine or reclassify any of its or their equity securities or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, units of its or their equity securities, or (C) repurchase, redeem or otherwise acquire any units or any securities convertible into or exercisable for any units (except for repurchases and redemptions paid in cash);
(c) the Company shall not, and shall not permit any other Company Entity to, issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any units of any class, or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such units, or enter into any agreement with respect to any of the foregoing;
(d) other than to the extent required to comply with its obligations hereunder or required by Law, the Company shall not, and shall not permit any other Company Entity to, amend its or their charter, bylaws, certificate of formation or operating agreement in any material respect (or equivalent organizational documents);
(e) the Company shall not, and shall not permit any othe...
Conduct of the Companies. BUSINESS PENDING THE CLOSING ------------------------------------------------------
Conduct of the Companies. From the date hereof until the Closing Date, Freeport shall cause the Companies to conduct their businesses in the Ordinary Course of Business consistent with past practice. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, except as disclosed in Section 5.01 of the Companies Disclosure Schedule, or as required in order to comply with Applicable Law or as otherwise required by this Agreement, Freeport will not permit either Company to:
(a) amend its organizational documents (whether by merger, consolidation or otherwise);
(b) split, combine or reclassify any shares of capital stock of such Company;
(c) (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company Securities; or (ii) amend any term of any Company Security (whether by merger, consolidation or otherwise);
(d) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any businesses, other than acquisitions with a purchase price that does not exceed US$1,000,000 individually or US$5,000,000 in the aggregate;
(e) sell, lease or otherwise transfer any of either of the Companies’ material assets or permit the imposition of any Lien (save and except for Permitted Liens), other than (i) sales of inventory in the Ordinary Course of Business consistent with past practice and (ii) sales of assets with a sale price that does not exceed US$1,000,000 individually or US$5,000,000 in the aggregate.
(f) except as required to comply with any employee benefit plan or agreement or Applicable Law or for changes made in respect of any Employee Benefit Plan that are generally applicable to all employees participating in such Employee Benefit Plan, (i) grant any severance, retention or termination pay to, or enter into or amend any severance, retention or termination agreement with, or increase the compensation or benefits provided to, any Key Employee, (ii) grant any severance, retention or termination pay to, or enter into or amend any severance, retention or termination agreement with, or materially increase the compensation or benefits provided to any Company Employee, other than in the Ordinary Course of Business consistent with past practice and not in violation of any applicable collective bargaining agreement, (iii) establish, adopt, materially amend or terminate any Employee Benefit Plan, (iv) transfer the employment of any individual other than a Specified Service Provider fr...
Conduct of the Companies. From the date hereof until the Closing Date, except as expressly provided otherwise in this Agreement, including Schedules 3.09 and 5.01 hereto, Seller shall cause each Company and each Subsidiary to conduct their businesses in the ordinary course consistent with past practices and to use their reasonable best efforts to preserve intact their business organizations and relationships with third parties and to keep available the services of their present officers and employees. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, except as expressly provided otherwise in this Agreement, including Schedules 3.09 and 5.01 hereto, Seller will not permit any Company or any Subsidiary to:
(a) adopt or propose any change in its certificate of incorporation or any material change in its bylaws;
(b) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of any Company or any Subsidiary (other than a liquidation or dissolution of any Subsidiary or a merger or consolidation between wholly-owned Subsidiaries);
(c) make any equity investment in or acquisition of any business of any Person or any material amount of assets, except for any capital expenditure permitted by Section 5.01(h);
(d) sell, lease, license or otherwise dispose of any assets in an amount that would be material to the Companies and the Subsidiaries, taken as a whole, except (i) pursuant to existing contracts or commitments or (ii) in the ordinary course of business consistent with past practices;
(e) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock other than dividends paid by any Subsidiary to any Company or any other Subsidiary;
(f) issue, sell, transfer, pledge, dispose of or encumber any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class or series of any Company or any Subsidiary;
(g) redeem, purchase or otherwise acquire directly or indirectly any of the capital stock of any Company or any Subsidiary;
(h) make or commit to make any capital expenditure, except in the ordinary course of business and which is consistent with the 1998 budget plans made available to Buyer; or
(i) agree or commit to do any of the foregoing. Seller will not...
Conduct of the Companies. From the date hereof until the Closing Date, Sellers shall cause each Company to conduct its businesses in the ordinary course consistent with past practice and to use its best efforts to preserve intact its business organizations and relationships with third parties and to keep available the services of its present officers and employees. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, Sellers will not permit any Company to:
(i) adopt or propose any change in its certificate of incorporation or bylaws;
(ii) merge or consolidate with any other Person or acquire a material amount of assets of any other Person;
(iii) sell, lease, license or other-wise dispose of any material assets or property except (A) pursuant to existing contracts or commitments and (B) in the ordinary course consistent with past practice; or
(iv) agree or commit to do any of the foregoing. Sellers will not, and will not permit any Company to (A) take or agree or commit to take any action that would make any representation and warranty of Sellers hereunder inaccurate in any respect at, or as of any time prior to, the Closing Date or (B) omit or agree or commit to omit to take any action necessary to prevent any such representation or warranty from being inaccurate in any respect at any such time.
