Interim Conduct of Business. (a) Except (i) as contemplated by this Agreement or (ii) as set forth in Section 6.1(a) of the Company Disclosure Letter, at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article X and the Effective Time, unless Parent otherwise provides its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall and shall cause its Subsidiaries to (A) carry on its business and conduct its operations in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, and (B) use its commercially reasonable efforts, consistent with past practices and policies, to (I) keep available the services of the current officers, key employees and consultants of the Company and each of its Subsidiaries, (II) preserve the current relationships of the Company and each of its Subsidiaries with customers, suppliers and other Persons whom the Company or any of its Subsidiaries has significant business relations, (III) maintain all of its material operating assets in their current condition (normal wear and tear excepted) and (IV) maintain and preserve its business organization and its material rights and franchises.
(b) Except (i) as contemplated or permitted by this Agreement or (ii) as set forth in Section 6.1(b) of the Company Disclosure Letter, at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article X and the Effective Time, unless Parent otherwise provides its prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not do any of the following and shall not permit any of its Subsidiaries to do any of the following:
(i) amend its certificate of incorporation or bylaws or comparable organizational documents or create any new Subsidiaries;
(ii) issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any Company Securities or any Subsidiary Securities, except for (A) the issuance, delivery and sale of shares of Company Common Stock pursuant to Company Options, Company RSUs or Company Restricted Stock Awards which are outstanding as of the date ...
Interim Conduct of Business. Except as otherwise contemplated by this Agreement, and as reflected in the Interim Financial Statements, between October 31, 1999 and the date of signing of this Agreement, the Company has not:
(a) sold, assigned, leased, exchanged, transferred or otherwise disposed of any portion of its assets or property, except for sales of Inventory and cash applied in the payment of the Company's Liabilities in the usual and ordinary course of business in accordance with the Company's past practices;
(b) written off any asset which has a net book value which exceeds $10,000 individually or $50,000 in the aggregate in value, or suffered any casualty, damage, destruction or loss, or interruption in use, of any material asset, property or portion of Inventory (whether or not covered by insurance), on account of fire, flood, riot, strike or other hazard or Act of God;
(c) waived any material right arising out of the conduct of, or with respect to, its business;
(d) made (or committed to make) capital expenditures in an amount which exceeds $10,000 for any item or $50,000 in the aggregate;
(e) made any change in accounting methods or principles;
(f) borrowed any money or issued any bonds, debentures, notes or other corporate securities (other than equity securities), including without limitation, those evidencing borrowed money;
(g) entered into any transaction with, or made any payment to, or incurred any liability to, any Related Party (as defined herein) in an amount which exceeds $25,000 or $100,000 in the aggregate (except for payment of salary and other customary expense reimbursements made in the ordinary course of business to Related Parties who are employees of the Company);
(h) increased the compensation payable to any employee, except for normal pay increases in the ordinary course of business consistent with past practices;
(i) made any payments or distributions to its employees, officers or directors except such amounts as constitute currently effective compensation for services rendered, or reimbursement for reasonable ordinary and necessary out-of-pocket business expenses;
(j) paid or incurred any management or consulting fees, or engaged any consultants, except in the ordinary course of business;
(k) hired any employee who has an annual salary in excess of $50,000, or employees with aggregate annual salaries or wages in excess of $100,000;
(l) terminated any employee having an annual salary or wages in excess of $100,000 or employees with aggregate annual ...
Interim Conduct of Business. Except as contemplated by this Agreement, as set forth in Section 5.1 of the Disclosure Schedule or with the prior consent of Buyer, from the date hereof until the Closing, Seller shall use all reasonable efforts to operate the Business consistent with past practice and in the ordinary course of business, or otherwise consistent with the terms of this Agreement. Without limiting the generality of the foregoing and except as otherwise provided in this Agreement or the transactions contemplated hereby or as set forth in Section 5.1 to the Disclosure Schedule, the Seller will cause the Company and each Subsidiary not to, prior to the Closing Date, without the prior consent of Buyer, do any of the following:
(a) declare, set aside, or pay any dividend or make any distribution with respect to its capital stock (whether in cash or in kind) or redeem, purchase, or otherwise acquire any of its capital stock, other than transactions solely between the Company and a Subsidiary;
(b) sell, lease, transfer, or assign any of its assets, tangible or intangible, to any third party, other than in the ordinary course of business or apply, utilize or otherwise dispose of any assets of the Business to discharge any indebtedness or claims against Seller or any of its Affiliates;
(c) impose any Lien upon any of its assets, tangible or intangible;
(d) change or authorize a change in the Certificate of Incorporation or bylaws of the Company or any Subsidiary;
(e) issue, sell or otherwise dispose of any of its capital stock, or grant any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(f) guarantee any third party indebtedness;
(g) incur any borrowings from third parties in excess of $100,000;
(h) enter into any agreement or transaction with Seller or its Affiliates;
(i) merge or consolidate with any other person or entity or acquire a material amount of assets of any other person or entity; or
(j) agree or commit to do any of the foregoing.
Interim Conduct of Business. From the date hereof until the Closing, the Company shall operate its business as a going concern consistent with prior practice and in the ordinary course of business (except as may be authorized pursuant to this Agreement or as set forth on Schedule 5.1(a) hereto). Without limiting the generality of the foregoing, from the date hereof until the Closing, except for transactions contemplated by this Agreement or expressly approved in writing by Merger Sub, the Company shall not:
(i) make any increases in the level of compensation of its officers or employees, or make any changes in pensions, benefits, bonus or severance plans except such increases or changes as are mandated by existing contracts or policies (it being understood that bonus payments to employees shall continue to accrue as a Company liability in accordance with historic practice through the Closing Date);
(ii) purchase, lease or otherwise acquire any real estate or any interest therein;
(iii) declare, set aside or pay any dividend or make any other distribution with respect to any Equity Security;
(iv) merge or consolidate with or agree to merge or consolidate with, or purchase or agree to purchase all or substantially all of the assets of, acquire securities of or otherwise acquire any Person;
(v) sell, lease or otherwise dispose of or agree to sell, lease or otherwise dispose of any of its assets, properties, rights or claims, whether tangible or intangible, except in the ordinary course of business consistent with prior practice;
(vi) authorize for issuance, issue, sell or deliver any of its own Equity Securities;
(vii) split, combine or reclassify any class of Equity Security or redeem or otherwise acquire, directly or indirectly, any of its Equity Securities;
(viii) incur any additional indebtedness above that shown on the Company Statement, or any other liability, guaranty or obligation (fixed or contingent) other than in the ordinary course of business consistent with prior practice;
(ix) place or permit to be placed any Lien on any of its assets or properties, other than statutory Liens arising in the ordinary course of business;
(x) make or authorize any amendments or changes to its Charter or By-Laws, or make or authorize any change to its existing capitalization;
(xi) make investments in excess of $50,000 in the aggregate in property, plant and equipment and other items of capital expenditure;
(xii) accelerate receivables or delay or postpone payment of any accounts payable or oth...
Interim Conduct of Business. Except as otherwise contemplated by this Agreement or as disclosed in the Disclosure Statement, since August 31, 1997, none of the Selling Entities have:
(a) sold, assigned, leased, exchanged, transferred or otherwise disposed of any material portion of its assets or property, except for sales of Inventory and cash applied in the payment of any of the Selling Entities' Liabilities, in the usual and ordinary course of business in accordance with the Selling Entities' past practices;
(b) suffered any material casualty, damage, destruction or loss, or interruption in use, of any material asset, property or portion of Inventory (whether or not covered by insurance), on account of fire, flood, riot, strike or other hazard or Act of God;
(c) written off any material asset as unusable or obsolete or for any other reason;
(d) made or suffered any material change in the conduct or nature of any aspect of its business, whether or not made in the ordinary course of business or whether or not such change had a material adverse effect of the financial condition or operations of the Selling Entities;
(e) waived any material right arising out of the conduct of, or with respect to, their respective businesses;
(f) made (or committed to make) capital expenditures in an amount which exceeds $10,000 for any item or $50,000 in the aggregate;
(g) discharged any material liability except in the usual and ordinary course of business in accordance with past practices, or prepaid any liability;
(h) made any change in accounting methods or principles;
(i) entered into any material transaction with, or made any payment to, or incurred any liability to, any Related Party;
(j) made any payments or distributions to its employees, officers or directors except such amounts as constitute currently effective compensation for services rendered, or reimbursement for reasonable ordinary and necessary out-of-pocket business expenses;
(k) paid or incurred any management or consulting fees, or engaged any consultants;
(l) adopted any new Plan, Welfare Plan or Employee Benefit Plan;
(m) issued or sold any securities of any class;
(n) paid, declared or set aside any dividend or other distribution on its securities of any class or purchased, exchanged or redeemed any of its securities of any class; or
(o) without limitation by the enumeration of any of the foregoing, entered into any transaction other than in accordance with past practices. Notwithstanding the foregoing, none of the Selling Entitie...
Interim Conduct of Business. From the date of this Agreement until the Closing or any earlier termination of this Agreement in accordance with its terms, unless approved by NetObjects in writing, the Company will operate its business consistently with past practice and in the ordinary course of business, and will not:
(a) merge or consolidate with or agree to merge or consolidate with, or sell or agree to sell all or substantially all of its Property to, or purchase or agree to purchase all or substantially all of the Property of, or otherwise acquire, any other Person or a division thereof, except as provided in this Agreement;
(b) amend its Certificate of Incorporation or Bylaws;
(c) make any changes in its accounting methods, principles or practices, except as required by GAAP;
(d) sell, consume or otherwise dispose of any Property, except in the ordinary course of business consistent with past practices;
(e) authorize for issuance, issue, sell or deliver any additional shares of its capital stock of any class or any securities or obligations convertible into shares of its capital stock or issue or grant any option, warrant or other right to purchase any shares of its capital stock of any class, other than, in each case, the issuance of Common Stock pursuant to the exercise of the outstanding stock options held by Xxxxxxx Xxxxxxxxx prior to the Merger Effective Time;
(f) declare any dividend on, make any distribution with respect to, or redeem or repurchase, its capital stock except under existing repurchase agreements or obligations as set forth in Schedule 2.1;
(g) modify, amend or terminate any Benefit Plans, except as required under Legal Requirements or any Disclosable Contract; or
(h) authorize or enter into an agreement to do any of the foregoing.
Interim Conduct of Business. Except as set forth in Section 5.1 of the Company Disclosure Letter or otherwise expressly contemplated by the terms of this Agreement, prior to the Closing, each of the Company and its Subsidiaries shall not, without the prior consent of Elevation:
(a) amend or modify its certificate of incorporation, its bylaws or the Certificate of Designation in a manner that would require the consent of the holders of the Company Series C Preferred Stock if effected following the Closing (other than the filing of the Certificate of Designation, and an amendment to the Series B Preferred Certificate of Designation pursuant to Section 5.10, with the Secretary of State of the State of Delaware at or prior to the Closing);
(b) (A) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, or convertible into or exchangeable or exercisable for, any of its capital stock (other than dividends and distributions by a direct or indirect wholly-owned Subsidiary of the Company to its parent); (B) adjust, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities; (C) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities, other than repurchases of Company Common Stock pursuant to existing compensation, benefits, option, restricted share or employment agreement or plan existing on the date hereof; or (D) take any action that would result in an adjustment of the conversion price under the Company Series C Preferred Shares had the Company Series C Preferred Shares been outstanding at the time of such action;
(c) change the number of directors from nine (9) members or change the current and anticipated future structure of the Company Board, except as contemplated by the Amended and Restated Stockholders’ Agreement;
(d) amend, alter or change the rights, preferences, privileges or powers of the Company Common Stock or the Company Series C Preferred Stock or designate or amend the rights, preferences or privileges of any other series of Company Preferred Stock;
(e) issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, ri...
Interim Conduct of Business. From the date hereof until the Closing, Seller shall administer, manage and service the Purchased Assets and perform its obligations under the Dealer Contracts consistent with the practice of Seller on the date hereof and in the ordinary course of its business.
Interim Conduct of Business. Except as set forth on Schedule 6.1 or as otherwise specifically provided herein, from the date hereof until the Closing, Seller shall operate the Subsidiary consistent with past practice and in the ordinary course of business in all material respects, and shall use reasonable efforts to preserve intact the Subsidiary's business organizations and assets and maintain its rights, franchises and existing relations with customers, suppliers, employees and business associates. Except as expressly contemplated by this Agreement, as required by a governmental authority of competent jurisdiction or as set forth on Schedule 6.1, without the prior written consent of Purchaser, Seller will not, and will cause Subsidiary not to:
Interim Conduct of Business. Since June 19, 2013, through the date hereof, each Seller and each Owner have caused the operations of each Seller to be carried on in the normal course of business, diligently and lawfully, and in substantially the same manner as they previously were carried out. Since June 19, 2013, no Seller has suffered the existence or allowed the creation of any Liens of any nature on such Seller’s property or assets, except in the ordinary course of business or as set forth in Schedule 3.17. No Seller has (a) engaged in any activities or transactions which are outside the ordinary course of business of such Seller as conducted prior to and as of June 19, 2013, which would result in a Material Adverse Effect to the Business; or (b) altered or taken any action to alter, such Seller’s relationships with its suppliers, employees, independent contractors or any other relationships related to the Business, or, with respect to PC Seller, its Facilities, patients, referral sources or third party payors which would result in a Material Adverse Effect to the Business.
