Conduct of the Company’s Business. During the period from the date of this Agreement and continuing until the earlier of the Effective Time and the date nominees of Parent or Subsidiary constitute a majority of the members of the board of trustees of the Company (such earlier time, the “Control Time”), except either as consented to in writing (including by email or other electronic transmission) by Parent in response to a written or oral request therefore from the Company (which response shall not be unreasonably delayed), the Company shall, and shall cause its subsidiaries to, conduct its and their business in the ordinary course and use commercially reasonable efforts to conduct its and their business relationships with third parties and to keep available the services of their present officers and employees, provided that it does not require additional compensation, and preserve its and their relationships with customers, suppliers and others having business dealings with the Company and its subsidiaries, and to maintain the Company’s qualification as a REIT, in each case subject to the terms of or contemplated by this Agreement. In addition, without limiting the generality of the foregoing, except as expressly permitted in this Agreement, from the date hereof until the Control Time, the Company shall not, and shall cause its subsidiaries not to:
(a) (i) authorize, declare or pay any dividends on or make other distributions in respect of any of its stock (except for dividends by a wholly owned subsidiary of the Company to its parent and except for distributions necessary for the Company to maintain its REIT qualification, avoid the incurrence of any taxes under Section 857 of the Code, avoid the imposition of any excise taxes under Section 4981 of the Code, or avoid the need to make one or more extraordinary or disproportionately larger distributions to meet any of the three preceding objectives), (ii) split, combine or reclassify any of its stock or issue or authorize or propose the issuance of any other securities or (iii) repurchase, redeem or otherwise acquire any shares of stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities;
(b) except in accordance with the Share Option Agreement, issue, deliver, sell, pledge or encumber, or authorize or propose the issuance, delivery, sale, pledge or encumbrance of, any shares of its beneficial interests, stock or any other security;
(c) am...
Conduct of the Company’s Business. From and after the date hereof and prior to the Closing, the Company will conduct, and the Shareholders will cause the Company to conduct, its business and affairs only in the ordinary course, consistent in all material respects with prior practice. Without limiting the generality of the foregoing, prior to the Closing, the Company will not, and the Shareholders will cause the Company not to, without Parent's prior written approval or except as expressly provided for in this Agreement:
(a) change its certificate or articles of incorporation or bylaws or merge or consolidate or obligate itself to do so with or into any other entity;
(b) enter into any contract, agreement, commitment or other understanding or arrangement of a type which would have to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; or
(c) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay any long-term indebtedness except to the extent required by the terms thereof; or
(d) declare or pay any dividend or distribution on any of its shares of capital stock; or
(e) perform, take any action or incur or permit to exist any acts, transactions, events or occurrences of the type described in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Time.
Conduct of the Company’s Business. The Company covenants and agrees as to itself and its Subsidiaries that, prior to the Effective Time, unless Parent shall otherwise consent in writing or as otherwise expressly contemplated by this Agreement:
(a) the business of the Company and each Subsidiary shall be conducted only in, and the Company shall not and shall cause each Subsidiary not to, take any action except in, the ordinary course of business consistent with past practice;
(b) the Company shall not, directly or indirectly, and the Company shall cause each Subsidiary not to do any of the following: (i) amend or propose to amend its Articles of Incorporation or Bylaws or reincorporate in any jurisdiction; (ii) split, combine or reclassify any issued and outstanding 21 shares of its capital stock, or declare, set aside or pay any dividend or other distribution (payable in cash, stock, property or otherwise) with respect to such shares;(iii) redeem, purchase, acquire or offer to acquire (or permit any Subsidiary to redeem, purchase, acquire or offer to acquire) any shares of its capital stock; or (iv) issue, sell, pledge, accelerate, modify the terms of or dispose of, or agree to issue, sell, pledge, accelerate, modify the terms of or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants, calls, commitments or rights of any kind to acquire any shares of, its capital stock of any class or other property or assets;
(c) the Company shall not, and the Company shall cause each Subsidiary not to: (i) transfer, lease, license, sell, mortgage, pledge, dispose of or encumber any material assets, except in the ordinary course of business consistent with past practice; (ii) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any material assets; (iii) enter into or modify any Material Contract, except in the ordinary course of business consistent with past practice; (iv) terminate, modify, assign, waive, release or relinquish any material rights or claims or amend any material rights or claims not in the ordinary course of business consistent with past practice; (v) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations, in the ordinary course of business, reflected o...
Conduct of the Company’s Business. The Company covenants and agrees that from the date of this Agreement to the time that the Parent Designees constitute a majority of the members of the Company Board, unless Parent shall otherwise consent in advance in writing or to the extent described in Schedule 5.1 hereto or as otherwise expressly contemplated by this Agreement:
(a) the business of the Company and each Company Subsidiary shall be conducted only in, and the Company and each Company Subsidiary shall not take any action except in, the ordinary course of business and consistent with past practice and each of the Company and the Company Subsidiaries shall use its best efforts to maintain its relationships with its suppliers, customers and employees and maintain the goodwill of the Company and each Company Subsidiary;
(b) neither the Company nor any Company Subsidiary shall: (i) except as contemplated hereby, amend its Certificate of Incorporation or By-Laws (or similar organizational documents), (ii) issue, sell, pledge or dispose of any shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or any stock appreciation rights, performance shares or phantom stock based upon the value of any capital stock or designate any class or series of preferred stock, provided that the Company may issue Shares upon the exercise of currently outstanding Company Stock Options listed in Schedule 3.5 hereto, (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend payable in cash, stock, property or otherwise with respect to such shares (except for any dividends paid to the Company or to any wholly owned subsidiary), (iv) redeem, purchase, acquire or offer to acquire any shares of, or securities convertible into or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its capital stock or any options, warrants or rights of any kind to acquire any shares of its capital stock or (v) amend or waive any of its rights under, or accelerate the vesting under, any provision of any of the Company Stock Plans, any provision
Conduct of the Company’s Business. Except as contemplated by this Agreement, during the period from the date hereof to the Closing Date, the Company will conduct its business and operations solely in the ordinary course of business consistent with past practice and use reasonable commercial efforts to keep available the services of its officers and employees and preserve its current relationships with customers, suppliers, licensors, creditors and others having business dealings with it.
Conduct of the Company’s Business. The Company covenants that during the period from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement pursuant to its terms, unless Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), and except to the extent required by law, or as disclosed in the Company SEC Reports or Section 6.1 of the Company Disclosure Schedule, and except as otherwise expressly required or permitted by this Agreement:
(a) the business of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action, except in the ordinary course of business, and the Company shall use commercially reasonable efforts to preserve intact its present business organization and goodwill, to keep available the services of its officers and key employees and to maintain its qualification as a REIT within the meaning of Section 856 of the Code;
(b) the Company shall not, and shall not cause or permit any Company Subsidiary to, do any of the following: (i) sell, pledge, lease, dispose of or encumber any property or assets, except for dispositions of immaterial assets or encumbrances and pledges that are, individually or in the aggregate, immaterial; provided that any disposition set forth on Section 6.1 of the Company Disclosure Schedule must be made pursuant to the terms set forth in such schedule, (ii) amend or propose to amend its charter or bylaws (or comparable organizational documents) in a manner that would adversely affect Parent; (iii) split, combine or reclassify any shares of its stock, or declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to such shares except for (A) regular quarterly dividends in the ordinary course of business, at a rate not to exceed $0.27 per share of Company Common Stock; (B) a prorated dividend for the period from the last record date set pursuant to the foregoing clause (A) through and including the Closing; (C) dividends paid by a wholly-owned direct or indirect Company Subsidiary to such Company Subsidiary’s parent; and (D) with the consent of Parent, not to be unreasonably withheld, conditioned or delayed, the minimum distributions required for the Company to maintain its qualification as a REIT, to avoid the imposition of any Excise Taxes under Section 4981 of the Code and to avoid in...
Conduct of the Company’s Business. The Company covenants and agrees that, prior to the Effective Time, unless Parent shall otherwise consent in writing or as otherwise expressly contemplated by this Agreement:
(a) the business of the Company and the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business consistent with past practice and each of the Company and the Subsidiaries shall use its best efforts to preserve intact its present business organization, keep available the services of its current officers and employees, maintain its assets (other than those permitted to be disposed of hereunder) in good repair and condition, maintain its books of account and records in the usual, regular and ordinary manner and preserve its goodwill and ongoing business;
(b) the Company shall not directly or indirectly do any of the following: (i) issue, sell, pledge, dispose of or encumber (or permit any of the Subsidiaries to issue, sell, pledge, dispose of or encumber) (A) any capital stock of the Company or any of the Subsidiaries, or (B) any property or assets (including Intellectual Property) of the Company or any of the Subsidiaries, except inventory and immaterial assets in the ordinary course of business consistent with past practice; (ii) amend or propose to amend its Certificate of Incorporation or Bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock, or declare, set aside or pay any dividend payable in cash, stock, property or otherwise with respect to such shares (except for any dividends paid in the ordinary course to the Company or to any Subsidiary); (iv) redeem, purchase, acquire or offer to acquire (or permit any of the Subsidiaries to redeem, purchase, acquire or offer to acquire) any shares of its capital stock; or (v) enter into any contract, agreement, commitment or arrangement with respect to any of the matters set forth in this paragraph (b);
(c) neither the Company nor any of the Subsidiaries shall (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its capital stock of any class or other property or assets; (ii) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof (except a Subsidiary)...
Conduct of the Company’s Business. The Company covenants and agrees that, prior to the Effective Time, unless Parent shall otherwise consent in writing or as otherwise expressly contemplated by this Agreement:
(a) the business of the Company and the Subsidiaries shall be conducted only in, and the Company and the Subsidiaries shall not take any action except in, the ordinary course of business;
(b) neither the Company nor any Subsidiary shall, directly or indirectly, do any of the following: (i) amend or propose to amend its Certificate of Incorporation or Bylaws or reincorporate in any jurisdiction; (ii) split, combine or reclassify any issued and outstanding shares of its capital stock, or declare, set aside or pay any dividend or other distribution (payable in cash, stock, property or otherwise) with respect to such shares (except for any dividends paid in the ordinary course to the Company or to any wholly-owned Subsidiary); (iii) redeem, purchase, acquire or offer to acquire (or permit any Subsidiary to redeem, purchase, acquire or offer to acquire) any shares of its capital stock; or (iv) issue, sell, pledge, accelerate, modify the terms of or dispose of, or agree to issue, sell, pledge, accelerate, modify the terms of or dispose of, any additional shares of, or securities convertible or exchangeable for, or any options, warrants, calls, commitments or rights of any kind to acquire any shares of, its capital stock of any class or other property or assets, whether pursuant to the Company Option Plans or otherwise, provided, that the Company may issue shares of Company Common Stock pursuant to the purchase rights then outstanding under the Company Stock Purchase Plan and upon the exercise of currently outstanding Options referred to in Section 3.5 hereof and may take the actions contemplated in Section 2.6 hereof;
(c) neither the Company nor any Significant Subsidiary shall (i) transfer, lease, license, sell, mortgage, pledge, dispose of or encumber any material assets except in the ordinary course of business; (ii) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or any other material assets; (iii) enter into or modify any material contract, lease, agreement or commitment, except in the ordinary course of business; (iv) terminate, modify, assign, waive, release or relinquish any material rights or claims or amend any material rights or claims not in the ordinary course of business; (v) p...
Conduct of the Company’s Business. The Company --------------------------------- covenants and agrees that, between the date hereof and the Closing Date, unless WCAS VII and GTCR shall otherwise consent in writing, the Company shall not (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any shares of, or securities convertible or exchangeable for, or any options, warrants or rights of any kind to acquire any shares of, its capital stock of any class, except as provided herein; (ii) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof (except an existing wholly-owned subsidiary) or any material amount of assets; (iii) incur or guarantee any indebtedness for borrowed money or refinance any such indebtedness or issue or sell any debt securities; (iv) enter into or modify any material contract, lease, agreement or commitment, or permit or perform any act that would cause a material breach of any such contract, lease, agreement or commitment; (v) make any loans, advances or capital contributions to or investments in, any other person; or (vi) violate or fail to perform in any material respect any obligation imposed upon the Company or any of its subsidiaries by any applicable laws, orders, decrees, ordinances, government rules or regulations.
Conduct of the Company’s Business. From the date of this Agreement and until the Closing Date, or until the prior termination of this Agreement, the Company shall not, unless agreed to in writing by ChainTrade:
(a) engage in any transaction, except in the normal and ordinary course of business, or create or suffer to exist any lien or other encumbrance upon any of its assets or which will not be discharged in full prior to the Closing Date;
(b) sell, assign or otherwise transfer any of its assets, or cancel or compromise any debts or claims relating to its assets, other than for fair value, in the ordinary course of business, and consistent with past practice;
(c) fail to use commercially reasonable efforts to preserve intact its present business organizations, keep available the services of its employees and preserve its material relationships with customers, suppliers, licensors, licensees, distributors and others, to the end that its good will and ongoing business not be impaired prior to the Closing Date;
(d) intentionally permit any Material Adverse Effect to occur with respect to the Company;
(e) make any material change in its accounting or bookkeeping methods, principles or practices, except as required by GAAP; or
(f) authorize any, or commit or agree to take any of, the foregoing actions.
