Operation of Seller. Except as specifically provided in this Agreement, between the date of this Agreement and the Closing Date, Seller shall:
Operation of Seller. 33 4.3 Consents.......................................................................................33 4.4 No Public Announcements or Negotiation with Others.............................................33 4.5 Reasonable Efforts to Satisfy Conditions.......................................................34 4.6 Bulk Transfer..................................................................................34 4.7 Change of Seller's Name........................................................................34 4.8 Vacate Real Property...........................................................................35 4.9
Operation of Seller. Between the date hereof and the Effective Time of Closing, except as contemplated herein or except with the prior consent of Purchaser, which consent will not be unreasonably withheld, Seller shall:
A. conduct the Business in the ordinary course of business consistent with past practices;
B. not dispose of, or commit to dispose of, any Assets (other than the liquidation and settlement of Accounts and the sale and delivery of Inventory and products covered by Backlog Orders, all in the ordinary and customary course of Seller's business); and
C. use all reasonable efforts to continue in effect until immediately following the Effective Time of Closing all present insurance coverage with respect to the Assets, the Business and the Employees. Seller shall not effect any amendment to the articles of incorporation or the bylaws of Seller and shall not cause or permit the issuance of any additional shares of the capital stock or equity interests (or options, warrants or other rights to acquire capital stock or equity interests) of Seller. Each party shall make reasonable efforts to advise the other promptly in writing of any condition or circumstance, known to such party, occurring from the date hereof up to and including the Effective Time of Closing that would cause the respective representations herein to become untrue in any material respect.
Operation of Seller. From the Closing Date until December 31, 2013, the functions of Seller shall be to (i) hold securities of the Company, (ii) exercise its rights and comply with its obligations under this Agreement, the New Operating Agreement and the Unitholders Agreement, (iii) act as co-borrower on credit facilities in existence on the date hereof, and (iv) exercise its rights and comply with its obligations under agreements with its securityholders and under its equity-based compensation instruments (such as stock appreciation rights and stock options), and it shall conduct no business (including the incurrence of any Indebtedness) other than as is necessary to fulfill this function, except with the written consent of Purchaser or any successor entity to Purchaser. Without limiting the foregoing, Seller shall ensure that at all times from the Closing Date until December 31, 2013, holders of its equity securities constituting at least a majority (on a fully-diluted basis) of the voting power of Seller’s outstanding stock shall have executed a Voting Agreement with Purchaser. Seller further agrees that, in the event its purchase right with respect to any of the shares of Seller’s Common Stock becomes exercisable under the Buy-Sell Agreement, Seller shall promptly assign its purchase right to Xxxxxxxxx and, to the extent Seller’s purchase right is not fully exercised by Xxxxxxxxx, Seller shall then assign its purchase right to Purchaser within the time frame permitted for Seller to exercise its purchase right under the Buy-Sell Agreement. Seller agrees to keep Purchaser reasonably informed of all developments related to the occurrence of any event that gives rise to Seller’s purchase right under the Buy-Sell Agreement and all determinations made by Seller and Xxxxxxxxx related thereto. Seller shall not enter into any amendment or modification to the Buy-Sell Agreement without the prior written consent of Purchaser.
Operation of Seller. 33 4.3 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.4 No Public Announcements or Negotiation with Others . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.5 Reasonable Efforts to Satisfy Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.6 Bulk Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.7 Change of Seller's Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.8 Vacate Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4.9
Operation of Seller. Between the date hereof and the Effective Time of Closing, except as contemplated herein or except with the prior consent of Purchaser, which consent will not be unreasonably withheld, Seller shall: 33 A. conduct the Business in the ordinary course of business consistent with past practices;
Operation of Seller. Except with the prior written consent of the Acquiror, which consent shall not be unreasonably withheld or delayed, between the Agreement Date and the Closing, Seller will:
(a) conduct its business only in the Ordinary Course of Business and in material compliance with all Legal Requirements;
(b) use its Best Efforts to preserve intact its current business organization, keep available the services of its current officers, employees and agents, and maintain the goodwill of its suppliers, customers, landlords, creditors, employees, agents and others who have business relationships with it;
(c) confer with Acquiror concerning operational matters of a material nature;
(d) enter into loan transactions only in accordance with sound credit practices and only on terms and conditions that are not materially more favorable than those available to the borrower from competitive sources in arm’s-length transactions, and in that connection, from the date hereof to the Closing, shall not:
(i) enter into any new credit or new lending relationships in excess of $1,000,000 with any Person and such Person’s Borrowing Affiliate (as defined below); or
(ii) other than incident to a reasonable loan restructuring, extend additional credit to any Person and any director or officer of, or any owner of a ten percent (10%) or greater equity interest in, such Person (any of the foregoing with respect to a Person being referred to as a “Borrowing Affiliate”) if such Person or such Borrowing Affiliate is the obligor under any indebtedness to Seller which constitutes a non-performing loan or against any part of such indebtedness Seller has established specific loss reserves or any part of which has been charged-off by Seller or which is included on Seller’s watch list. provided, however, that Seller shall be permitted to make any loan that is otherwise prohibited by this subsection if Seller has made a written request to Acquiror for permission to make an otherwise prohibited loan and has provided the Acquiror with sufficient information to make an informed decision with respect to such request, and the Acquiror has failed to respond to such request within three (3) Business Days after his receipt of such request and such information;
(e) maintain an ALLL which is adequate in all material respects under the requirements of GAAP or any Legal Requirement to provide for possible losses, net of recoveries relating to loans previously charged off, on loans outstanding (including accrued inter...
Operation of Seller. During the two year period following the Closing, or for such longer period as there shall be an unresolved claim by Buyer against Seller under Article VIII hereof, Seller shall not, without the prior written consent of Buyer, (a) merge or consolidate with or into any other entity, cause any entity to be merged or consolidated with or into Seller, or dividend, distribute, convey, transfer or lease all or substantially all of its assets to any other entity unless the surviving entity, distributee, purchaser, transferee or lessee expressly assumes all the obligations of Seller hereunder, including, without limitation, pursuant to Article VIII; or (b) make any payment or distribution to any Stockholder or Affiliate of Seller or any Stockholder except (i) dividends from net income for any fiscal year during which Seller is an "S corporation" as defined in the Internal Revenue Code in an aggregate amount designed to reimburse the Stockholders for taxes imposed on the earnings attributable to them by virtue of their status as S corporation Stockholders; (ii) scheduled payments on Seller's indebtedness in the approximate amount of $2,200,000 owed to one or more Affiliates of Seller existing prior to the execution hereof; and (iii) ordinary and reasonable compensation for services rendered, consistent with past practice. Buyer will not withhold its consent to any action described in (b) above if such action is undertaken in connection with an initial public offering of Seller or other transaction which significantly enhances the financial position of Seller such that Seller's equity value (assets less liabilities) exceeds Four Million Dollars ($4,000,000), notwithstanding the action described in (b) above.
Operation of Seller. 31 4.3 Access.32 4.4 Exclusivity....................................................33 4.5 Schedules......................................................33 4.6
Operation of Seller. (a) Except as contemplated by this Agreement, during the period from the date of this Agreement until the Closing Date, the Seller shall use reasonable commercial efforts to, conduct its operations in the ordinary course, and preserve the Business, the Acquired Assets and the reputation of the Business. Without limiting the generality of the foregoing, prior to the Closing, the Seller shall not, without the written consent of the Buyer:
(i) authorize, issue, sell or transfer any capital stock of the Seller or any other securities of the Seller, including any securities convertible or exercisable into or exchangeable for any capital stock or other securities of, or any warrants, options or other rights to acquire any capital stock or other securities of the Seller;
(ii) change or authorize any change in the charter or by-laws of the Seller;
(iii) merge or consolidate the Seller with any other person or entity;
(iv) sell, assign or transfer any portion of the Acquired Assets in a single transaction or series of related transactions in an amount in excess of $50,000, except for sales in the ordinary course of business;
(v) incur or guarantee any indebtedness for borrowed money, except in the ordinary course of business;
(vi) grant any rights to severance benefits, "stay pay" or termination pay to any Employee or increase by more than eight percent (8%) the compensation or other benefits payable or potentially payable to any Employee under any previously existing severance benefits, "stay-pay" or termination pay arrangements;
(vii) make any capital expenditures or commitments therefor in an amount in excess of $500,000 in the aggregate, except in the ordinary course of business or in accordance with the Seller's capital expenditure budget included in the Disclosure Schedule;
(viii) acquire any operating business, whether by merger, stock purchase or asset purchase (except as provided in Section 4.6);
(ix) enter into any employment, compensation or deferred compensation agreement (or any amendment to any such existing agreement) with any Employee whose annual base salary exceeds $100,000, except in the ordinary course of business;
(x) materially amend the terms of any existing Seller Benefit Plan, except as required by law;
(xi) change its accounting principles, methods or practices except in each case to conform to changes in GAAP;
(xii) enter into any contract or agreement outside the ordinary course of business;
(xiii) materially amend or terminate a Materia...
