Common use of Operation and Preservation of Business Clause in Contracts

Operation and Preservation of Business. During the Interim Period, without the prior written consent of Buyer, Seller will not, and Equityholders will cause Seller to not, engage in any practice, take any action or enter into any transaction outside of the Ordinary Course of Business, except for any action expressly required by this Agreement. During the Interim Period, without the prior written consent of Buyer, Seller will not, and Equityholders will cause Seller not to, engage in any practice, take or fail to take any action or enter into any Contract or transaction that could reasonably be expected to cause the representations and warranties of Seller and Equityholders contained herein to be untrue at any time between the date hereof and the Closing. During the Interim Period, Seller will conduct, and Equityholders will cause Seller to conduct, the Business in the Ordinary Course of Business and in compliance with all Laws, and will keep the Business and its assets and properties, including Seller’s present operations, physical facilities, licenses, working conditions, insurance policies, goodwill and relationships with lessors, licensors, suppliers, customers, employees and other business relations substantially intact, open and operational. Without limiting the generality of the foregoing, during the Interim Period, Seller will not, and Equityholders will cause Seller not to, without the prior written consent of Buyer, take any of the following actions: (i) amend, extend or terminate any material Contract or enter into any Contract, which if entered into prior to the date hereof, would be a material Contract; (ii) incur any Liability (including any Indebtedness) other than in the Ordinary Course of Business; (iii) dispose of or encumber any assets of Seller other than in the Ordinary Course of Business; (iv) increase any compensation or benefits of any employees or independent contractors of Seller or establish any new compensation or benefit plan; (v) hire, retain, engage or terminate any employee or independent contractor or make any other material personnel changes; (vi) accelerate any accounts receivable, delay or postpone any capital expenditure or the payment of accounts payable or other Liabilities, or change, in any material respect, Seller’s practices in connection with the making of capital expenditures or the payment of accounts payable; (vii) grant any Person any license of or other right to IP other than non-exclusive licenses of Products granted in the Ordinary Course of Business; (viii) except as required as a result of a change in Law or GAAP after the date hereof, change any of the financial accounting principles or practices of Seller; (ix) commence or settle any Legal Proceeding; (x) issue any equity interests or debt securities or repurchase or cancel any equity interests or debt securities of Seller; (xi) declare, set aside, or pay any non-cash dividend or make any non-cash distribution with respect to any equity securities of Seller or enter into any Contract with any of Equityholders; (xii) take any action that would reasonably be expected to have a material and adverse effect on the Business or the Purchased Assets; (xiii)(A) change or make any Tax election, (B) adopt or change any Tax accounting methods, (C) amend a Tax Return, (D) agree to any claims for Tax adjustments or assessments, or (E) settle any Tax claim, audit or assessment; or (xiv) agree or commit to take any of the actions described in clauses (i) through (xiii) above.

Operation and Preservation of Business. During the Interim Period, without the prior written consent of Buyer, no Seller will notwill, and Equityholders each Equityholder will cause each Seller to not, engage in any practice, take any action or enter into any transaction outside of the Ordinary Course of Business, except for any action expressly required by this Agreement. During the Interim Period, without the prior written consent of Buyer, no Seller will notwill, and Equityholders each Equityholder will cause each Seller not to, engage in any practice, take or fail to take any action or enter into any Contract or transaction that could reasonably be expected to cause the representations and warranties of any Seller and Equityholders Party contained herein to be untrue at any time between the date hereof and the Closing. During the Interim Period, each Seller will conduct, and Equityholders each Equityholder will cause each Seller to conduct, the Business in the Ordinary Course of Business and in compliance with all Laws, and will keep the Business and its such Seller’s assets and properties, including such Seller’s present operations, physical facilities, licenses, working conditions, insurance policies, goodwill and relationships with lessors, licensors, suppliers, customers, employees and other business relations substantially intact, open and operational. Notwithstanding the foregoing, Sellers may take any action regarding any Excluded Assets, Excluded Seller IP, or other tangible or intangible assets of a Seller unrelated to the Business, including, without limitation, sale, transfer, or other alienation of such assets, as determined by Seller in Seller’s sole discretion to the extent such actions do not have any effect on the Purchased Assets, the Assumed Liabilities, or the Business. Without limiting the generality of the foregoing, during the Interim Period, no Seller will notwill, and Equityholders each Equityholder will cause each Seller not to, without the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned, or delayed (which the Parties agree is a delay longer than seven (7) days from the date of request), take any of the following actions: (i) amend, extend or terminate any material Contract or enter into any Contract, which if entered into prior to the date hereof, would be a material Contract; (ii) incur any Liability (including any Indebtedness) other than in the Ordinary Course of Business; (iii) dispose of or encumber any assets of any Seller related to the Business, the Purchased Assets, the Assumed Liabilities and limited as set forth above, other than in the Ordinary Course of Business; (iv) increase any compensation or benefits of any employees or independent contractors of any Seller or establish any new compensation or benefit plan; (v) hire, retain, engage or terminate any employee or independent contractor, move any employee or independent contractor from any Location to another Location, or make any other material personnel changes; (vi) accelerate any accounts receivable, delay or postpone any capital expenditure or the payment of accounts payable or other Liabilities, or change, in any material respect, any Seller’s practices in connection with the making of capital expenditures or the payment of accounts payable; (vii) grant any Person any license of or other right to IP other than non-exclusive licenses of Products granted in the Ordinary Course of Business; (viii) except as required as a result of a change in Law or GAAP after the date hereof, change any of the financial accounting principles or practices of any Seller; (ix) commence or settle any Legal Proceeding; (x) issue any equity interests or debt securities or repurchase or cancel any equity interests or debt securities of any Seller; (xi) declare, set aside, or pay any non-cash dividend or make any non-cash distribution with respect to any equity securities of any Seller or enter into any Contract with any of EquityholdersEquityholder except for the Redemption Agreement; (xii) take any action that would reasonably be expected to have a material and adverse effect on the Business or the Purchased Assets; (xiii)(A) change or make any Tax election, (B) adopt or change any Tax accounting methods, (C) amend a Tax Return, (D) agree to any claims for Tax adjustments or assessments, or (E) settle any Tax claim, audit or assessment; or (xiv) agree or commit to take any of the actions described in clauses (i) through (xiii) above.

Operation and Preservation of Business. During the Interim Period, without the prior written consent of Buyer, Seller will not, and Equityholders each Equityholder will cause Seller to not, engage in any practice, take any action or enter into any transaction outside of the Ordinary Course of Business, except for any action expressly required by this Agreement. During the Interim Period, without the prior written consent of Buyer, Seller will not, and Equityholders each Equityholder will cause Seller not to, engage in any practice, take or fail to take any action or enter into any Contract or transaction that could reasonably be expected to cause the representations and warranties of any Seller and Equityholders Party contained herein to be untrue at any time between the date hereof and the Closing. During the Interim Period, Seller will conduct, and Equityholders each Equityholder will cause Seller to conduct, the Business in the Ordinary Course of Business and in compliance with all Laws, and will keep the Business and its such Seller’s assets and properties, including such Seller’s present operations, physical facilities, licenses, working conditions, insurance policies, goodwill and relationships with lessors, licensors, suppliers, customers, employees and other business relations substantially intact, open and operational. Without limiting the generality of the foregoing, during the Interim Period, Seller will not, and Equityholders each Equityholder will cause Seller not to, without the prior written consent of Buyer, take any of the following actions: (i) amend, extend or terminate any material Contract or enter into any Contract, which if entered into prior to the date hereof, would be a material Contract; (ii) incur any Liability (including any Indebtedness) other than in the Ordinary Course of Business; (iii) dispose of or encumber any assets of Seller Seller, other than in the Ordinary Course of Business; (iv) increase any compensation or benefits of any employees or independent contractors of Seller or establish any new compensation or benefit plan; (v) hire, retain, engage or terminate any employee or independent contractor, move any employee or independent contractor from any location to another location, or make any other material personnel changes; (vi) accelerate any accounts receivableAccounts Receivable, delay or postpone any capital expenditure or the payment of accounts payable or other Liabilities, or change, in any material respect, Seller’s practices in connection with the making of capital expenditures or the payment of accounts payable; (vii) grant any Person any license of or other right to IP other than non-exclusive licenses of Products granted in the Ordinary Course of Business; (viii) except as required as a result of a change in Law or GAAP after the date hereof, change any of the financial accounting principles or practices of Seller; (ix) commence or settle any Legal Proceeding; (x) issue any equity interests or debt securities or repurchase or cancel any equity interests or debt securities of Seller; (xi) declare, set aside, or pay any non-cash dividend or make any non-cash distribution with respect to any equity securities of Seller or enter into any Contract with any of EquityholdersEquityholder; (xii) take any action that would reasonably be expected to have a material and adverse effect on the Business or the Purchased Assets; (xiii)(A) change or make any Tax election, ; (B) adopt or change any Tax accounting methods, ; (C) amend a Tax Return, ; (D) agree to any claims for Tax adjustments or assessments, ; or (E) settle any Tax claim, audit or assessment; or (xiv) agree or commit to take any of the actions described in clauses (i) through (xiii) above.

Operation and Preservation of Business. During Except as required by Law or as set forth on Section 5.3 of the Interim PeriodSeller Disclosure Schedule, without the prior written consent of Buyer, Seller will shall not, and Equityholders will shall cause the other Seller to notEntities not to, engage in any practice, take any action or enter into any agreement or transaction outside of that, if taken prior to the Ordinary Course of Businessdate hereof, except for any action expressly required by this Agreement. During the Interim Periodwould be described in Section 3.5, without the prior written consent of the Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. The Seller will notshall, and Equityholders will shall cause each of the other Seller not Entities to, engage use commercially reasonable efforts to (i) maintain its Files and Records, purchase inventory, perform all required maintenance and repairs necessary to maintain the Acquired Assets in any practice, take or fail good operating condition (subject to take any action or enter into any Contract or transaction that could reasonably be expected to cause the representations normal wear and warranties of Seller tear) and Equityholders contained herein to be untrue at any time between the date hereof and the Closing. During the Interim Period, Seller will conduct, and Equityholders will cause Seller to conduct, otherwise operate the Business in the Ordinary Course of Business in all material respects, (ii) maintain and in compliance preserve its existing relationships and goodwill with all Laws, and will keep the Business and its assets and properties, including Seller’s present operations, physical facilities, licenses, working conditions, insurance policies, goodwill and relationships with lessors, licensors, suppliers, customers, employees licensors, employees, officers and other others having business relations substantially intactdealings with the Business, open and operational. Without limiting (iii) maintain and preserve the generality Acquired Assets, and (iv) (A) comply in all material respects with all Laws and Contracts applicable to the operation of the foregoingBusiness, during (B) maintain all existing licenses and applicable permits applicable to the Interim Periodoperation of the Business, and (C) pay all applicable Taxes as such Taxes become due and payable. Notwithstanding anything herein to the contrary, nothing contained in this Agreement shall give the Buyer directly or indirectly the right to control or direct the operations of the Business prior to the Closing, and prior to the Closing, the Seller will Entities shall exercise, consistent with the terms and conditions of this Agreement, complete control over the Business. The Seller shall not, and Equityholders will shall cause the other Seller Entities not to, without the prior written consent of Buyerissue, take sell, lease, sublease, transfer, pledge, assign or create any of the following actions: (i) amend, extend or terminate any material Contract or enter into any Contract, which if entered into prior to the date hereof, would be a material Contract; (ii) incur any Liability Lien (including any Indebtedness) other than in the Ordinary Course by virtue of Business; (iii) dispose of terminating, assigning, pledging, mortgaging, encumbering, amending or encumber any assets of Seller other than in the Ordinary Course of Business; (iv) increase any compensation or benefits of any employees or independent contractors of Seller or establish any new compensation or benefit plan; (v) hire, retain, engage or terminate any employee or independent contractor or make any other material personnel changes; (vi) accelerate any accounts receivable, delay or postpone any capital expenditure or the payment of accounts payable or other Liabilities, or change, modifying in any material respect, Seller’s practices in connection with the making of capital expenditures or the payment of accounts payable; (vii) grant failing to exercise any Person any license of renewal or other right to IP other than non-exclusive licenses of Products granted in the Ordinary Course of Business; (viii) except as required as a result of a change in Law or GAAP after the date hereof, change any of the financial accounting principles or practices of Seller; (ix) commence or settle any Legal Proceeding; (x) issue any equity interests or debt securities or repurchase or cancel any equity interests or debt securities of Seller; (xi) declare, set aside, or pay any non-cash dividend or make any non-cash distribution extension option with respect to any equity securities of Seller Leased Real Property), other than Permitted Liens or enter into Liens that will be released at or prior to the Closing, on any Contract with any of Equityholders; (xii) take any action that would reasonably be expected to have a material and adverse effect on Leased Real Property or sell, lease, sublease or otherwise transfer the Business or the Purchased Assets; (xiii)(A) change or make any Tax election, (B) adopt or change any Tax accounting methods, (C) amend a Tax Return, (D) agree to any claims for Tax adjustments or assessments, or (E) settle any Tax claim, audit or assessment; or (xiv) agree or commit to take any of the actions described in clauses (i) through (xiii) aboveLeased Real Property.

Operation and Preservation of Business. During the Interim Period, without Without the prior written consent of BuyerPurchaser, Seller will the Company shall not, and Equityholders will Seller shall cause Seller to notthe Company not to, engage in any practice, take any action or enter into any transaction outside of the Ordinary Course of Business, except for any action expressly required by specified in this Agreement. During the Interim Period, without Without the prior written consent of BuyerPurchaser, neither the Company nor Seller will not, and Equityholders will cause Seller not to, shall engage in any practice, take or fail to take any action or enter into any Contract or transaction that could reasonably be expected to cause the representations and warranties of the Company or Seller and Equityholders contained herein to be untrue at any time between the date hereof and the Closing. During the Interim Period, Seller will conduct, The Company shall conduct its business in a reasonable and Equityholders will cause Seller to conduct, the Business prudent manner in the Ordinary Course of Business accordance with past practices and in compliance with all Laws, and will shall keep the Business and its business, assets and properties, including Sellerthe Company’s present operations, physical facilities, licenses, working conditions, insurance policies, goodwill and relationships with lessors, licensors, suppliers, customers, employees and other business relations substantially intact, open and operational. Without limiting the generality of the foregoing, during the Interim PeriodCompany shall (a) maintain and replace the assets used in or necessary for the operation of its business and make necessary and prudent capital expenditures, Seller will not(b) maintain its working capital consistent with past practices and at a level sufficient to operate its business in the Ordinary Course of Business prior to and immediately after the Closing, and Equityholders will cause Seller not to(c) not, without the prior written consent of BuyerPurchaser, take any of the following actions: (i) amendenter into any Contract or commitment or incur any expense with a value or requiring payment in excess of $25,000; (ii) sell, extend issue, transfer, pledge, dispose of or terminate encumber, or agree to sell, issue, transfer pledge, dispose of or encumber, any material Contract equity interests or other securities (or any options, warrants or rights of any kind with respect thereto) or repurchase, purchase, redeem or cancel any of its outstanding equity interests or other securities (or any options, warrants or rights of any kind with respect thereto); (iii) amend or authorize any amendments to the Company’s governing documents; (iv) incur any Indebtedness other than in the Ordinary Course of Business or otherwise encumber its properties or assets; (v) declare, set aside or make any distributions to, or enter into any Contractarrangement with, which if entered into prior to any equityholder of the date hereof, would be a material ContractCompany; (iivi) incur dispose of or encumber any Liability (including any Indebtedness) other than of its assets except for sales of Products in the Ordinary Course of Business; (iii) dispose of or encumber any assets of Seller other than in the Ordinary Course of Business; (ivvii) increase any compensation or benefits of any its employees or independent contractors of Seller or contractors, establish any new compensation or benefit plan; (v) hire, retain, engage or terminate any employee or independent contractor plan or make any other material personnel changes; (viviii) accelerate any accounts receivableAccounts Receivable, delay or postpone any capital expenditure or the payment of accounts payable or other Liabilities, or change, in any material respect, Seller’s its practices in connection with the making of capital expenditures or the payment of accounts payable; (viiix) grant or agree to grant to any Person any license of or other right to IP Intellectual Property other than non-exclusive licenses of Products granted in the Ordinary Course of Business; (viiix) enter into any Contract with respect to the Products, the terms of which vary from the Standard Product Terms; (xi) except as required as a result of a change in Law or GAAP GAAP, after the date hereof, change any of the its financial accounting principles or practices of Sellerpractices; (ix) commence or settle any Legal Proceeding; (x) issue any equity interests or debt securities or repurchase or cancel any equity interests or debt securities of Seller; (xi) declare, set aside, or pay any non-cash dividend or make any non-cash distribution with respect to any equity securities of Seller or enter into any Contract with any of Equityholders; (xii) take any action that would reasonably be expected to have result in a material and adverse effect on the Business or the Purchased Assets; (xiii)(A) change or make any Tax election, (B) adopt or change any Tax accounting methods, (C) amend a Tax Return, (D) agree to any claims for Tax adjustments or assessments, or (E) settle any Tax claim, audit or assessment; or (xiv) agree or commit to take any of the actions described in clauses (i) through (xiii) aboveMaterial Adverse Effect.

Operation and Preservation of Business. During the Interim Period, without Without the prior written consent of Buyer, Seller Parties will not, and Equityholders will cause Seller to not, not engage in any practice, take any action or enter into any transaction outside of the Ordinary Course of BusinessBusiness with respect to the Purchased Assets, except for any action expressly required by specified in this Agreement. During the Interim Period, without Without the prior written consent of Buyer, Seller Parties will not, and Equityholders will cause Seller not to, engage in any practice, take or fail to take any action or enter into any Contract or transaction that could reasonably be expected to cause the representations and warranties of Seller Parties and Equityholders the Members contained herein to be untrue at any time between the date hereof and the Closing. During the Interim Period, Seller will conduct, and Equityholders will cause Seller to conduct, conduct the Business in the Ordinary Course of Business and in compliance with all Laws, and will keep the Business and its assets and properties, including Seller’s Seller Parties’ present operations, physical facilities, licenses, working conditions, insurance policies, goodwill and relationships with lessors, licensors, suppliers, customers, employees and other business relations substantially intact, open and operational. Without limiting the generality of the foregoing, during the Interim Period, Seller Parties will not, and Equityholders will cause Seller not to, without the prior written consent of Buyer, take any of the following actions: actions (except as applicable to SG Land for intangible and tangible assets not related to the Leased Real Property): (i) amend, extend or terminate any material Material Contract or enter into any Contract, which if entered into prior to the date hereof, would be a material Material Contract; (ii) incur any Liability (including any Indebtedness) other than in the Ordinary Course of Business; (iii) dispose of or encumber any assets of Seller Parties other than in the Ordinary Course of Business; (iv) increase any compensation or benefits of any employees or independent contractors of Seller Parties or establish any new compensation or benefit plan; (v) hire, retain, engage or terminate any employee or independent contractor or make any other material personnel changes; (vi) accelerate any accounts receivable, delay or postpone any capital expenditure or the payment of accounts payable or other Liabilities, or change, in any material respect, Seller’s practices in connection with the making of capital expenditures or the payment of accounts payable; (vii) grant any Person any license of or other right to IP Intellectual Property other than non-non- exclusive licenses of Products granted in the Ordinary Course of Business; (viii) except as required as a result of a change in Law or GAAP after the date hereof, change any of the financial accounting principles or practices of SellerSeller Parties; (ix) commence or settle any Legal Proceeding; (x) issue any equity interests or debt securities or repurchase or cancel any equity interests or debt securities of SellerSeller Parties; (xi) declare, set aside, or pay any non-cash dividend or make any non-cash distribution with respect to any equity securities of Seller Parties or enter into any Contract with any of Equityholdersthe Members; (xii) take any action that would reasonably be expected to have a material and adverse effect on the Business or the Purchased Assets; (xiii)(Axiii) (a) change or make any Tax election, (Bb) adopt or change any Tax accounting methods, (Cc) amend a Tax Return, (Dd) agree to any claims for Tax adjustments or assessments, or (Ee) settle any Tax claim, audit or assessment; or (xiv) agree or commit to take any of the actions described in clauses (i) through (xiii) above.

Operation and Preservation of Business. During Seller shall cause the Interim Period-------------------------------------- Companies not to, without the prior consent of Buyer, engage in or permit any practice, transaction or act (i) which is outside the Ordinary Course of Business or (ii) which, if it had otherwise been engaged in or permitted, would have rendered untrue, in any material respect, any of the representations and warranties of Seller contained in Section 5.01; provided, however, that the Companies may, through the end of the month preceding the Closing Date, declare, set aside and/or pay any cash dividend with respect to its capital stock. Without limiting the generality of the foregoing, none of the Companies shall, without the prior written consent of Buyer, Seller will notredeem, and Equityholders will cause Seller to not, engage in purchase or otherwise acquire any practice, take any action or enter into any transaction outside of the Ordinary Course of Business, except for any action its capital stock. Except as otherwise expressly required permitted by this Agreement. During , prior to the Interim Period, without the prior written consent of BuyerClosing Date, Seller will not, and Equityholders will cause Seller not to, engage in any practice, take or fail to take any action or enter into any Contract or transaction that could reasonably be expected to cause the representations and warranties of Seller and Equityholders contained herein to be untrue at any time between the date hereof and the Closing. During the Interim Period, Seller will conduct, and Equityholders will cause Seller to conduct, the Business in the Ordinary Course of Business and in compliance with all Laws, and will keep the Business and its assets and properties, including Seller’s present operations, physical facilities, licenses, working conditions, insurance policies, goodwill and relationships with lessors, licensors, suppliers, customers, employees and other business relations substantially intact, open and operational. Without limiting the generality each of the foregoing, during the Interim Period, Seller will not, and Equityholders will cause Seller Companies not to, without the prior written consent of Buyer, take any of the following actions: (i) amend, extend or terminate any material Contract or enter into any Contract, which if entered into prior to the date hereof, would be a material Contract; (ii) incur any Liability (including any Indebtedness) other than in the Ordinary Course of Business; (iii) dispose of or encumber any assets of Seller other than in the Ordinary Course of Business; (iv) increase any compensation or benefits of any employees or independent contractors of Seller or establish any new compensation or benefit plan; (v) hire, retain, engage or terminate any employee or independent contractor or make any other material personnel changes; (vi) accelerate any accounts receivable, delay or postpone any capital expenditure or the payment of accounts payable or other Liabilitiesaffirmative action, or changefail to take any reasonable action within their or its control, in any material respect, Seller’s practices in connection with the making of capital expenditures or the payment of accounts payable; (vii) grant any Person any license of or other right to IP other than non-exclusive licenses of Products granted in the Ordinary Course of Business; (viii) except as required as a result of a change in Law or GAAP after the date hereof, change which any of the changes or events listed in Section 5.01(t) is likely to occur. Seller shall promptly notify Buyer of the occurrence of any matter or event which, to Seller's Knowledge, is material to the business, operations, properties, assets or financial accounting principles condition of the Companies. Seller shall use its Reasonable Efforts to cause the Companies to keep their respective business and properties substantially intact, keep available the services of the current officers, employees, and agents of the Companies, and maintain the relations and good will with suppliers, customers, landlords, creditors, employees, agents, and others having business relationships with the Companies. Seller shall (and shall cause the Companies to) confer with the Buyer prior to the submission by any Company of any significant bid or practices proposal for the provision of Seller; products or services by any Company and shall further allow the Buyer to review and comment upon any such bid or proposal prior to submission. In addition, Seller shall (ixand shall cause the Companies to) commence confer with the Buyer prior to (i) making (or settle committing to make) any Legal Proceeding; (x) issue any equity interests or debt securities or repurchase or cancel any equity interests or debt securities of Seller; (xi) declare, set aside, or pay any non-cash dividend or make any non-cash distribution with respect to any equity securities of Seller or enter into any Contract with any of Equityholders; (xii) take any action that would reasonably be expected to have a material and adverse effect on the Business or the Purchased Assets; (xiii)(A) change or make any Tax election, (B) adopt or change any Tax accounting methods, (C) amend a Tax Return, (D) agree to any claims for Tax adjustments or assessmentscapital expenditure, or (Eii) settle entering (or committing to enter) any Tax claimlease or similar arrangement whereby any Company will expend (or be committed to expend), audit in excess of $100,000 (individually or assessment; or (xiv) agree or commit to take any of in the actions described in clauses (i) through (xiii) aboveaggregate).