Conduct of the Company Prior to the Effective Time. (a) Unless Parent otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed) and except as otherwise contemplated by this Agreement (including Section 8.2(m)(i)) or set forth in the Company Disclosure Schedule, during the period commencing with the execution and delivery of this Agreement and terminating upon the earlier to occur of the Effective Time or the termination of this Agreement pursuant to and in accordance with Section 9.1 (the “Pre-Closing Period”), each of the Company and the Company Subsidiaries shall conduct the Business in the usual, regular and ordinary course to the end that the goodwill and ongoing Business shall not be impaired to the extent that there would be a Material Adverse Effect, provided that the Company shall be permitted to take, in good faith, any actions that are reasonably necessary to complete the audit of the Audited Company Financial Statements (2009).
(b) Except as otherwise contemplated by this Agreement or set forth in the Company Disclosure Schedule, during the Pre-Closing Period, neither the Company nor any Company Subsidiary shall do or cause to be done any of the following without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed):
(i) issue or amend the terms of (A) any Company Capital Stock or the capital stock of a Company Subsidiary, except upon the exercise of Company Options or Company Warrants outstanding on the date of this Agreement or (B) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating the Company or a Company Subsidiary to issue, deliver or sell any Company Capital Stock or the capital stock of a Company Subsidiary;
(ii) create any Encumbrance on any assets or properties (whether tangible or intangible) of the Company or a Company Subsidiary, other than (y) Permitted Encumbrances; and (z) Encumbrances on assets or properties having an aggregate value not in excess of $50,000;
(iii) incur any Liabilities other than (A) Liabilities having an aggregate value outstanding at any particular time not in excess of $50,000 or (B) Liabilities incurred in the ordinary course of business;
(iv) sell, assign, transfer, lease, license or otherwise dispose of, or agree to sell, assign, transfer, lease, license or otherwise dispose of, any of the material fixed assets of the Company or a Company Subsidiary having a value, in any individual case, in exc...
Conduct of the Company Prior to the Effective Time. (a) Unless Parent otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed) and except as otherwise contemplated by this Agreement or set forth in Schedule 5.1(a), during the period commencing with the execution and delivery of this Agreement and terminating upon the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Section 8.1, the Company shall, and shall cause each of its Subsidiaries to, (1) conduct its business only in the ordinary course; (2) use commercially reasonable efforts, subject to the limitations set forth in this Agreement, to keep available the services of the officers and key employees of the Company and its Subsidiaries; (3) use commercially reasonable efforts consistent with past practices and policies to maintain the tangible property of the Company and its Subsidiaries in its current condition, normal wear and tear excepted; (4) use commercially reasonably efforts consistent with past practices and policies to maintain and preserve intact the current organization, business and franchise of the Company and to preserve the rights, franchises, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having business relationships with the Company; and (5) cause all material representations and certifications contained in Government Bids to be current, accurate and complete.
(b) Except as otherwise contemplated by this Agreement or set forth in Schedule 5.1(b), during the period commencing with the execution and delivery of this Agreement and terminating upon the earlier to occur of the Effective Time and the termination of this Agreement in accordance with Section 8.1, the Company shall not, and shall cause each of its Subsidiaries not to, do or cause to be done any of the following without the prior written consent of Parent:
(1) amend in any respect the Company Certificate of Incorporation or Company Bylaws;
(2) issue, grant or sell any additional securities, including shares of Company Capital Stock or securities convertible into or exchangeable for shares of Company NAI-1503806643v11 Common Stock, other than the issuance of shares of Company Common Stock pursuant to the exercise of any Company Options or other rights outstanding on the date hereof;
(3) declare, set aside or pay any dividend or distribution or other capital return in respect of any securities of the Company or any of its Subsidiaries (ex...
Conduct of the Company Prior to the Effective Time. (a) Unless Parent otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed) and except as otherwise expressly required by this Agreement or set forth in Schedule 6.1 of the Company Disclosure Schedule, during the period commencing with the execution and delivery of this Agreement and terminating upon the earlier to occur of the Effective Time and the termination of this Agreement pursuant to and in accordance with Section 8.1 (the “Pre-Closing Period”), the Company shall (i) conduct the Business in the ordinary course, (ii) use commercially reasonable efforts to preserve intact its present business organization and goodwill, (iii) use commercially reasonable efforts to maintain satisfactory relationships with its customers, vendors, suppliers and others having material business relationships with it, and (iv) use commercially reasonable efforts to protect the Company Intellectual Property, including all rights or other interests of the Company in the Company Products.
(b) Without limiting the generality of the foregoing, except as otherwise expressly required by this Agreement or set forth in Section 6.1 of the Company Disclosure Schedule, during the Pre-Closing Period, the Company shall not do or cause to be done any of the following without the prior written consent of Parent:
(i) issue, deliver, sell or grant any (x) Company Capital Stock or other equity interests, except upon the exercise of Company Options or Company Warrants or (y) options, warrants or other rights, agreements or commitments obligating the Company to issue any Company Capital Stock or other equity interests or equity-based awards;
(ii) except in the ordinary course of business, create any Encumbrance on any assets (whether tangible or intangible) of the Company, other than (x) Permitted Encumbrances; and (y) Encumbrances on assets having an aggregate value not in excess of $100,000;
(iii) sell, assign, transfer, lease, license or otherwise dispose of, or agree to sell, assign, transfer, lease, license or otherwise dispose of, any of the fixed assets of the Company other than inventory in the ordinary course of business;
(iv) incur, or authorize the incurrence of, any capital expenditures or any obligations or liabilities in respect of capital expenditures by the Company, except for any capital expenditures which do not exceed $50,000 in the aggregate or that are set forth in the Company’s budget (as provided to Parent);
(v) acquire (by m...
Conduct of the Company Prior to the Effective Time. (a) Unless Parent otherwise consents in writing (which consent shall not be unreasonably withheld, conditioned or delayed) and except as otherwise expressly provided by this Agreement or set forth in the Company Disclosure Schedule, during the period commencing with the execution and delivery of this Agreement and terminating upon the earlier to occur of the Effective Time and the termination of this Agreement pursuant to and in accordance with Section 7.1 (the “Pre-Closing Period”), the Company and each of its Subsidiaries shall (i) conduct the Business in the usual, regular and ordinary course consistent with past practice and (ii) use commercially reasonable efforts, consistent with past practices and policies, to maintain the assets and properties of the Company and its Subsidiaries in their current condition, normal wear and tear excepted, and the goodwill of customers and suppliers.
(b) Immediately prior to the Closing, the Company shall be permitted to pay any Company Transaction Expenses. To the extent that the Company does not have sufficient Closing Date Net Working Capital to pay off all Company Transaction Expenses, Parent shall, or shall cause the Surviving Corporation to, pay to the applicable parties such unpaid expenses (“Unpaid Company Transaction Expenses”) promptly following the Effective Time upon the Company’s delivery of proper invoices prior to the determination of the Net Working Capital Adjustment Statement.
(c) Except as otherwise contemplated by this Agreement or set forth in the Company Disclosure Schedule, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to, do any of the following without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed):
(i) issue (A) any capital stock of the Company, except upon the conversion of Company Preferred Stock or the exercise of Company Options outstanding on the date of this Agreement, or (B) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating the Company to issue, deliver or sell any capital stock of the Company;
(ii) except in the ordinary course of business, create any Encumbrance on any assets or properties (whether tangible or intangible) of the Company, other than Permitted Encumbrances;
(iii) except in the ordinary course of business, sell, assign, transfer, lease, license or otherwise dispose of, or agree to sell, assign, transfe...
Conduct of the Company Prior to the Effective Time. (a) Unless Parent otherwise consents in writing which consent shall not be unreasonably withheld or delayed and except as otherwise contemplated by this Agreement or set forth in SECTION 6.2 of the Company Disclosure Schedule, during the period commencing with the execution and delivery of this Agreement by all of the parties hereto and terminating upon the earlier to occur of the Effective Time and the termination of this Agreement pursuant to and in accordance with SECTION 9.1, the Company shall, and shall cause each Company Subsidiary to, (i) conduct the Business only in the usual, regular and ordinary course, (ii) pay accounts payable and collect accounts receivable in the usual, regular and ordinary course and consistent with past practice, (iii) use commercially reasonable efforts consistent with past practices and policies to keep available the services of the officers and key employees of the Company and the Company Subsidiaries, and to preserve intact the current relationships of the Company and the Company Subsidiaries with their respective customers, suppliers, distributors, and other Persons with which the Company and the Company Subsidiaries have significant business relationships as of the date hereof, (iv) use commercially reasonable efforts consistent with past practices and policies to maintain the assets and properties of the Company and the
Conduct of the Company Prior to the Effective Time. 4.1 Conduct of Business by the Company 30
Conduct of the Company Prior to the Effective Time. (a) Unless Buyer otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed) and except as otherwise required or permitted by this Agreement or set forth in the Company Disclosure Schedule, during the Pre-Closing Period, the Company shall use commercially reasonable efforts to conduct the Business in the usual, regular and ordinary course consistent with past practice and use its commercially reasonable efforts to (w) preserve intact its present business organization, (x) maintain in effect all of its foreign, federal, state and local Permits,
Conduct of the Company Prior to the Effective Time. Except as set forth on Section 6.1 of the Company Disclosure Schedules or unless Parent otherwise consents in writing, during the period commencing with the execution and delivery of this Agreement and terminating upon the earlier to occur of the Effective Time and the termination of this Agreement pursuant to and in accordance with Section 8.1, the Company shall use commercially reasonable efforts to (a) conduct the Business in the ordinary course, (b) preserve intact its present business organization and goodwill, (c) maintain satisfactory relationships with its customers, vendors, suppliers and others having material business relationships with it, and (d) protect the Company Intellectual Property, including all rights or other interests of the Company in the Company Products. Without limiting the foregoing, except as set forth on Section 6.1 of the Company Disclosure Schedules, the Company shall not, without Parent’s prior written consent, take any action that, if taken after the Balance Sheet Date but before the execution of this Agreement, would be required to be disclosed in the Company Disclosure Schedule pursuant to Section 4.6(b).
Conduct of the Company Prior to the Effective Time. Except as otherwise consented to by Acquiror:
Conduct of the Company Prior to the Effective Time
