Operation of the Business. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement, except as otherwise contemplated by this Agreement, required by Law, as set forth in Section 4.2 of the Company Disclosure Schedule or as consented to by Buyer in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Shareholder will cause the Company to:
(a) conduct the business of the Company in the Ordinary Course of Business;
(b) use its commercially reasonable efforts to maintain the properties, physical facilities and operations of the Company in the same condition as they were on the date of this Agreement (subject to reasonable wear and tear), preserve intact the current business organization of the Company, keep available the services of the current officers and key employees of the Company, and maintain the relations and goodwill with suppliers, customers, lenders and others having material business relationships with the Company in the Ordinary Course of Business;
(c) manage payables, receivables and working capital in the Ordinary Course of Business;
(d) unless replaced or renewed on commercially reasonable terms with substantially similar or better coverage in the Ordinary Course of Business, continue in full force and effect without modification all insurance policies listed in Section 2.20 of the Company Disclosure Schedule;
(e) comply in all material respects with all applicable Laws;
(f) maintain its books and records in accordance with past practice;
(g) not adopt a new plan or agreement of complete or partial liquidation, dissolution, restructuring, consolidation, recapitalization or other reorganization or like change in the Company’s capitalization other than as set forth on Section 4.12 of the Company Disclosure Schedule;
(h) not waive in writing any material right of the Company, including any material write-off or compromise of accounts receivable;
(i) not enter into, amend in any material respect or terminate, release, waive any rights under, or assign any rights under, any Material Contract (or Contract that, if in existence on the date of this Agreement, would constitute a Material Contract), except in the Ordinary Course of Business or as set forth on Section 4.12 of the Company Disclosure Schedule;
(j) not enter into or make any capital expenditures, except capital expenditures made consistent with past practices;
(k) not acquire the equity securities, or substantially all of the assets, of any en...
Operation of the Business. Except as required by this Agreement or as disclosed in Section 6.1 of the Disclosure Letter, Seller covenants that, in respect of the Business, until the Closing it will, and it will cause the Other Sellers to, use commercially reasonable efforts to continue, in a manner consistent with the past practice of the Business, to keep available the services of their respective employees engaged in the Business through the Closing, to maintain and preserve intact the Business in all material respects and to maintain in all material respects the ordinary and customary relationships of the Business with its suppliers, customers and others having material business relationships with it with a view toward preserving for Purchaser and its Designees, after the Closing Date, the Business, the Purchased Assets and the goodwill associated therewith. Except as otherwise disclosed in Section 6.1 of the Disclosure Letter, until the Closing, Seller shall, and it shall cause the Other Sellers in respect of the Business to, continue to operate and conduct the Business in all material respects in the ordinary course. Except as otherwise required by this Agreement or as disclosed in Section 6.1 of the Disclosure Letter, without limiting the generality of the foregoing, Seller shall not and shall cause the Other Sellers not to, without the prior written approval of Purchaser (which approval shall not be unreasonably withheld or delayed), take any of the following actions with respect to the Business:
(a) transfer, sell, lease, license or otherwise convey or dispose of, or subject to any Lien, any of the Purchased Assets other than (i) sales of inventory in the ordinary course of business, (ii) other transfers, leases, licenses and dispositions made in the ordinary course of business that are not material individually or in the aggregate, or (iii) Permitted Liens;
(b) directly or indirectly, through any officer, director or agent, solicit inquiries or proposals that constitute, or are intended to lead to a proposal or offer from, provide any confidential information to, or initiate any discussions or negotiations or cooperate with, any Person (other than Purchaser and its Subsidiaries and their respective officers, employees, representatives and agents) that involves, directly or indirectly, any sale or other disposition of the Business (other than in connection with transactions that would be permitted pursuant to this Agreement and other than any transaction relating to the equi...
Operation of the Business. Between the date of this Agreement and the Closing Date, unless required by order of the Bankruptcy Court or the Cayman Court, or Purchaser shall otherwise agree in writing, the Company shall cause the STB Business to be conducted only in the Ordinary Course of Business, and shall use its commercially reasonable efforts to preserve substantially intact the organization of the STB Business, substantially keep available the services of the STB Employees and STB Service Providers and substantially preserve the current relationships of the STB Business with customers, suppliers and other Persons with which the STB Business has material business relations. For the avoidance of doubt, the Company shall, and shall cause its applicable Subsidiaries to, pay all registration, maintenance, renewal, and annuity fees and Taxes due by Company or any Subsidiary prior to and as of the Closing Date, without extensions of time or late payment fees, and have all necessary documents prepared and filings timely made in connection therewith, for the maintenance, prosecution, registration and filing of each item of Purchased Intellectual Property Assets, including taking all Required Actions. In furtherance of the foregoing and in no way limiting the foregoing, between the date of this Agreement and the Closing Date, the Company shall, except as set forth on Schedule 5.2:
(a) if requested in writing by Purchaser, to the extent permitted by applicable Law, report to Purchaser regarding the STB Business and the status of the STB Business and the Company’s and each Subsidiary’s operations and finances; provided, that, the Company shall only be required to report information that is currently available to the Company and that is prepared in a format that is currently used by the Company to report such information or a format required pursuant to this Agreement;
(b) report to Purchaser on a weekly basis the names of any STB Employees who give notice of termination of employment or who threaten to terminate employment;
(c) maintain the Purchased Assets in a state of repair and condition that is consistent with the Ordinary Course of Business;
(d) pay or otherwise satisfy in the Ordinary Course of Business all of its material Liabilities of the STB Business to the extent permitted under bankruptcy Law;
(e) promptly take all Required Actions and any other office actions with respect to any Registered IP and provide drafts of any proposed office actions to Purchaser in advance of filing ...
Operation of the Business. The Seller or Underlying Asset shall ensure that, during the Pre-Closing Period:
(a) It conducts its operations in the Ordinary Course of Business and in the same manner as such operations have been conducted prior to the date of this Agreement;
(b) It uses its commercially reasonable efforts to preserve intact its current business organization, keep available and not terminate the services of its current officers and employees and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with the Underlying Asset;
(c) It does not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stock, and does not repurchase, redeem or otherwise reacquire any shares of its capital stock or other securities;
(d) It does not sell or otherwise issue (or grant any warrants, options or other rights to purchase) any shares of capital stock or any other securities;
(e) It does not amend its charter document, corporate governance document or other Organizational Documents, and does not affect or become a party to any recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;
(f) It does not form any subsidiary or acquire any equity interest or other interest in any other Entity;
(g) It does not establish or adopt any Employee Benefit Plan, and does not pay any bonus or make any profit sharing or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, and does not enter into or amend any agreement with any of its directors, officers or employees;
(h) It does not change any of its methods of accounting or accounting practices in any respect;
(i) It does not make any Tax election;
(j) It does not commence or take any action or fail to take any action which would result in the commencement of any Proceeding;
(k) It does not (i) acquire, dispose of, transfer, lease, license, mortgage, pledge or encumber any fixed or other assets, other than in the Ordinary Course of Business; (ii) incur, assume or prepay any indebtedness, Indebtedness or obligation or any other liabilities or issue any debt securities, other than in the Ordinary Course of Business; (iii) assume, guarantee, endorse for the obligations of any other person, other than in the Ordinary Course of Business; (iv) make a...
Operation of the Business. Except as contemplated by this Agreement, during the period from the date of this Agreement to the Closing, the Business Subsidiary shall conduct its operations of the Business in the ordinary course consistent with past practice and in compliance with all applicable Laws and, to the extent consistent therewith, use its reasonable best efforts to preserve intact its current business organization, keep its physical assets in good working condition, keep available the services of its current officers and employees, preserve its relationships with customers, suppliers and others having business dealings with it and maintain all material existing Permits.
(a) Without limiting the generality of the foregoing, prior to the Closing, the Sellers shall not (and shall cause the Business Subsidiary not to) take any actions as set forth below, but only to the extent that such actions relate to the Business, without the written consent of the Buyer:
(i) Issue or sell any stock or other securities of the Business Subsidiary or any options, warrants or other rights to acquire any such stock or other securities (except pursuant to the conversion or exercise of options, warrants or other convertible securities outstanding on the date hereof);
(ii) enter into, adopt or amend any Employee Benefit Plan or any employment or severance agreement or arrangement of the type described in Section 2.11(a)(viii) or (except for normal increases in the ordinary course of business) increase in any manner the compensation or fringe benefits of, or materially modify the employment terms of, its officers or employees, generally or individually, or hire any new officers or except in the ordinary course of business any new employees;
(iii) acquire, sell, lease, license or dispose of any assets or property other than purchases and sales of assets in the ordinary course of business;
(iv) mortgage or pledge any of its property or assets or subject any such property or assets to any Liens (other than Permitted Liens);
(v) discharge or satisfy any Liens (other than Permitted Liens) or pay any obligation or liability other than in the ordinary course of business;
(vi) amend the Business Subsidiary’s charter, by-laws or other organizational documents in a manner that could have an adverse effect on the transactions contemplated by this Agreement;
(vii) make any new elections, or changes to any current elections, with respect to Taxes that affect the Acquired Assets;
(viii) enter into, amend, termina...
Operation of the Business. Except as set forth on Schedule 3.14 or in connection with this Agreement, Everest and Subsidiaries has not since September 30, 2013:
(a) except for content or Equipment or inventory acquired in the Ordinary Course, made any acquisition of any assets, properties, capital stock or business of any other Persons with a purchase price in excess of $50,000 or made any commitments to do any of the foregoing;
(b) except in the Ordinary Course, made any sale, assignment, transfer or license of any Intellectual Property;
(c) except in the Ordinary Course, terminated, entered into or amended, or agreed to enter into or amend, any Contract required to be disclosed on Schedule 3.9;
(d) except in the Ordinary Course, hired, or agreed to hire, any Person to perform services in connection with the Business; entered into or amended, or agreed to enter into or amend, any employment agreement of any employee; made or agreed to make any payment or commitment to pay severance or termination pay to any of its officers, directors, employees, consultants, agents or other representatives;
(e) except as would not be reasonably expected to have a Material Adverse Effect, suffered or incurred any material damage, destruction or loss not covered by insurance materially adversely affecting the assets, properties, business, operations, condition (financial or otherwise) or prospects of the Business;
(f) except as would not be reasonably expected to have a Material Adverse Effect, failed to make any payment to any creditor of the Business as such obligations become due and payable; and
(g) except in the Ordinary Course, established or increased any bonus, commission, insurance, retention, deferred compensation, pension, retirement, profit sharing, stock option (including the granting of stock options, performance awards or restricted stock awards) or other employee benefit plan or arrangement, increased any salary or otherwise increased the compensation payable to or to become payable to any employee, other than annual increases commensurate with past practice.
Operation of the Business. (a) Except as contemplated herein or as otherwise consented to by the Purchaser in writing (which consent will not be unreasonably withheld), prior to the Closing, the Sellers will cause IDP and PRIMO to:
(i) Use reasonable efforts to keep the business of IDP and of PRIMO intact and not take or knowingly permit to be taken or do or knowingly suffer to be done anything other than in the ordinary course of business as the same is presently being conducted, to maintain the goodwill and reputation associated with their business;
(ii) Continue their existing practices relating to the maintenance of assets used in their business;
(iii) Not purchase, sell, lease or dispose of, or make any contract for the purchase, sale, lease or disposition of, or subject to Lien, any assets other than in the ordinary course of their business;
(iv) Except to the extent required by law or specifically provided for elsewhere herein or on Schedule 4.4(d) hereto, not increase the rates of compensation of any employee except for normal salary increases in the ordinary course of business consistent with past practice; and
(v) Not amend their governing documents or make any change in their capital stock or grant any option, warrant or other right to purchase or to convert any obligation into shares of capital stock
(b) Except as contemplated herein or as otherwise consented to by the IDP Sellers in writing (which consent will not be unreasonably withheld), prior to the Closing, the Purchaser (which shall mean for purposes of this Section 4.4(b) the Purchaser and Xxxx Computer Corporation, a Virginia corporation and AHC) will:
(i) Use reasonable efforts to keep the business of the Purchaser intact and not take or not permit to be taken or do or knowingly suffer to be done anything other than in the ordinary course of business as the same is presently being conducted, and to maintain the goodwill and reputation associated with the business of the Purchaser;
(ii) Continue its existing practices relating to the maintenance of assets used in its business; and
(iii) Not amend its governing documents, or make any change in its capital stock or, except pursuant to the Purchaser's existing Employee Stock Option Plan, grant any option, warrant or other right to purchase or to convert any obligation into shares of capital stock.
Operation of the Business. Except (i) in connection with or as a result of any matter listed or described on any Schedule and specifically identified therein as affecting the operating covenants below or as to which the relevance to the operating covenants below is apparent on its face, (ii) as expressly contemplated by this Agreement, or (iii) as otherwise consented to by Parent (on behalf of itself and Purchaser) in writing, prior to the Closing, Seller will:
(a) Use reasonable efforts to keep the Business intact and not take or permit to be taken or do or suffer to be done anything other than in the ordinary course of business of the Business as presently conducted, and use reasonable good faith efforts to keep intact, to preserve and maintain the goodwill associated with the Business and Seller's relationships with the customers, suppliers, distributors, licensors and others with whom Seller has a material relationship; provided, however, that nothing in this Agreement or otherwise will prohibit or restrict Seller from paying or prepaying any indebtedness for borrowed money or any intercompany obligation reflected on the Balance Sheet;
(b) Continue existing practices relating to maintenance of the Acquired Assets so that they remain in substantially the same (or better) condition as on the date of this Agreement, normal wear and tear excepted;
(c) Not purchase, sell, lease or dispose of, or enter into any lease, agreement or other Contract for the purchase, sale, lease or disposition of, or subject to a Lien (other than a Permitted Lien), any asset that would be, but for such transaction, an Acquired Asset other than in the ordinary course of business of the Business or pursuant to the Receivables Facility and, with respect to the sale or disposition of a capital asset, only in respect of assets having an individual cost basis of less than $1,000;
(d) Not make any material amendment to any Employee Plan or materially increase the general rates of compensation of Employees, except (i) as required by Law or (ii) in the ordinary course of business of the Business;
(e) Not incur any indebtedness or guarantee any debt or other liability of any other Person that would constitute an Assumed Liability;
(f) Not increase the compensation payable or to become payable by the Seller to any Employee whose annual base compensation exceeds $100,000 except for normal periodic increase of regular salary (not bonuses or other compensation) in the ordinary course of business of the Business that ar...
Operation of the Business. Except as set forth in Schedule 3.17, (a) Seller has operated the Business only through Seller and not through any other divisions or any direct or indirect subsidiary or affiliate of Seller and (b) no part of the operation of the Business is operated by or through any entity other than Seller.
Operation of the Business. Except as otherwise expressly permitted or required by this Agreement, unless the Purchasers shall otherwise consent in writing (which decision regarding consent will be promptly communicated and not unreasonably delayed), between the date of this Agreement and the Closing Date, the Sellers, to the extent not prohibited by applicable Antitrust Laws, will, and will cause AlphaGary Canada to:
(a) conduct the Business (including the business of each Target Company) only in the Ordinary Course of Business;
(b) use commercially reasonable efforts to consummate the Reorganization, maintain in all material respects the Purchased IP and preserve intact the Business, keep available the services of the current officers, employees and agents of the Target Companies and maintain the Business’ present relations with suppliers, customers, landlords, creditors, employees, agents and others having business relationships with the Business;
(c) reasonably confer with the Purchasers concerning course operational matters that are of a material or non-ordinary nature;
(d) otherwise reasonably report periodically to the Purchasers concerning the status of the Business, including the cash management processes, status of accounts payable, Accounts Receivable and the operations and finances of the Business;
(e) make no material changes in management personnel of the Business except as otherwise agreed by the parties;
(f) keep in full force and effect, without amendment, all material rights relating to the Business;
(g) keep all Material Contracts, Leases, permits and other agreements affecting the Real Property in all material respects in good standing and free from delinquency or default;
(h) comply in all material respects with all Legal Requirements applicable to the operations of the Business;
(i) maintain the Real Property in all material respects in the same state of condition and repair as existing on the date hereof;
(j) refrain from (i) performing or allowing the performance of any construction on the Real Property (except in the event of an emergency, notice of which will be promptly given to the Purchasers) or (ii) entering into any new Contracts affecting or binding upon the Real Property that would be binding upon the Purchasers or any Target Company after the Closing other than in the Ordinary Course of Business;
(k) not amend, materially modify or terminate any Target Company Benefit Plan without the express written consent of the Purchasers, other than as required ...
