Operation of the Business of the Company. During the Pre-Closing Period, the Company agrees to operate the business of the Company to ensure that:
(a) each Acquired Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date of this Agreement, including management of cash in the ordinary course and in substantially the same manner (which includes normal payment of payables and normal collection of receivables);
(b) each Acquired Company shall use commercially reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Acquired Companies;
(c) upon request by Parent, each Acquired Company shall report to Parent concerning operational, financial, regulatory, and Intellectual Property matters and otherwise report to Parent concerning the status of the business of the Acquired Companies;
(d) no Acquired Company shall cancel any of its insurance policies identified in Section 2.19(a) of the Disclosure Schedule or reduce the amount of any insurance coverage provided by such insurance policies;
(e) no Acquired Company shall declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or other securities, or repurchase, redeem, otherwise reacquire or adjust the conversion price of any shares of capital stock or other securities, except repurchases of unvested shares or cancellation of unvested options in connection with the termination of the service relationship with any employee and in connection with the termination of the service relationship with any other service provider pursuant to stock option or stock purchase agreements in effect on the date hereof;
(f) no Acquired Company shall sell, issue or authorize the issuance of: (i) any capital stock or other security; (ii) any option or right to acquire any capital stock (or cash based on the value of capital stock) or other security; or (iii) any instrument convertible into or exchangeable for any capital stock (or cash based on the value of capital stock) or other security (except that the Company shall be permitted to issue Common Stock upon the exercise of Options, or upon the conversion of Preferred Stock, in each case outstanding as of t...
Operation of the Business of the Company. (a) Except as contemplated by this Agreement or with the prior written consent of Buyer, between the date of this Agreement and the Closing Date, Seller shall cause the Company to (i) conduct its business in the ordinary course of business, (ii) use commercially reasonable efforts to preserve intact the current business organization of the Company, keep available the services of the Company's officers, employees, and agents, and maintain the Company's relations and good will with suppliers, customers, landlords, creditors, employees, agents and others having business relationships with the Company, (iii) confer with Buyer prior to implementing operational decisions of a nature which are either material in respect of the business of the Company or outside the ordinary course of business, and (iv) upon reasonable request from Buyer, periodically report to Buyer concerning the status of the business, operations and finance of the Company.
(b) Without limiting the generality of Section 4.2(a), except as contemplated by this Agreement, between the date of this Agreement and the Closing Date, the Company shall not, without the prior written consent of Buyer, take any of the following actions:
(i) issue, sell, repurchase, redeem or acquire any shares of capital stock of the Company, or grant or enter into any rights, warrants, options, agreements or commitments with respect to the issuance of such capital stock;
(ii) except for the distribution of the Seller Personal Property, declare, set aside or pay any dividend or other distribution (whether in cash, securities or property or other combination thereof) in respect of any shares of capital stock of the Company;
(iii) adjust, split, combine, subdivide or reclassify any shares of capital stock of the Company;
(iv) amend the Charter or Bylaws of the Company;
(v) except for the payment of the Change in Control Payments, pay or increase (except in the ordinary course of business) any salaries payable to any employee or director of the Company, or pay any bonuses to any employee or director of the Company;
(vi) adopt, amend, or increase the payments or benefits under, any Employee Benefit Plan;
(vii) except as set forth in Section 4.9, enter into, amend or terminate, or waive or assign any material right under (1) any contract or agreement of the Company having a value per contract, or involving payments by or to the Company, of at least $50,000 in the aggregate, (2) any contract or agreement with any Material Custom...
Operation of the Business of the Company. Between the date of this Agreement and the Closing Date, Sellers will, and will cause the Company to:
(a) conduct the business of the Company only in the Ordinary Course of Business;
(b) use their Best Efforts to preserve intact the current business organization of the Company, keep available the services of the current officers, employees, and agents of the Company, and maintain the relations and good will with suppliers, customers, landlords, creditors, employees, agents, and others having business relationships with the Company;
(c) confer with Buyer concerning operational matters of a material nature; and
(d) otherwise report periodically to Buyer concerning the status of the business, operations, and finances of the Company.
Operation of the Business of the Company. (a) From the date of this Agreement until the Closing, and other than as expressly contemplated by this Agreement, as requested in writing by the Purchaser or as determined by the board of directors of the Company, which determination would not constitute a violation of its fiduciary responsibilities, the Company will use commercially reasonable efforts to, and will use commercially reasonable efforts to cause each Company Subsidiary to, (a) conduct its business only in the ordinary course of business, and (b) preserve and protect its business organization, assets, employment relationships, and relationships with customers, strategic partners, suppliers, distributors, landlords and others doing business with it. Without limiting the generality of the foregoing and except as otherwise expressly permitted by this Agreement, the Company will use commercially reasonable efforts to not take, and will use commercially reasonable efforts to cause the Company Subsidiaries to not take, any of the actions set forth or disclosed in Section 3.10 hereof without the prior written consent of the Purchaser, which consent will not be unreasonably withheld, delayed or conditioned.
(b) Without limiting the generality of the foregoing, and other than the Permitted Interim Activities, the Company will not take, and will cause the Company Subsidiaries to not take, any of the following actions without the prior written consent of the Purchaser which will not be unreasonably withheld, delayed or conditioned:
(i) disburse or otherwise pay any cash or equivalent funds to any Person;
(ii) enter into any Contract with any Person; and
(iii) except for the issuance of Company Capital Stock upon the exercise of Options outstanding as of the date of this Agreement, issue, sell, grant, pledge or otherwise dispose of or Encumber any shares of its capital stock or other voting securities or any securities convertible, exchangeable or redeemable for, or any options, warrants or other rights to acquire, any such securities.
Operation of the Business of the Company. Between the date of this Agreement and the Closing Date, Seller will, and will cause the Company to, (a) conduct its business only in the Ordinary Course of Business, (b) use their Best Efforts to preserve intact the current business organization of the Company, keep available the services of the current officers, employees and agents of the Company, and maintain relations and goodwill with suppliers, customers, landlords, creditors, employees, agents and others having business relationships with the Company, (c) confer with Buyer concerning operational matters of a material nature and (d) otherwise report periodically to Buyer concerning the status of the business, operations and finances of the Company.
Operation of the Business of the Company. During the Pre-Closing Period, unless Transcend otherwise consents in writing:
(a) the Company shall conduct its business and operations in the ordinary course and in substantially the same manner as such business and operations have been conducted prior to the date of this Agreement;
(b) the Company shall use reasonable efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and maintain its relations and goodwill with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with the Company;
(c) the Company shall keep in full force and effect all insurance policies identified in Schedule 2.25 annexed hereto;
(d) the Company shall cause its officers to report regularly to Transcend concerning the status of the Company's business;
(e) the Company shall not declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock, and shall not repurchase, redeem or otherwise reacquire any shares of capital stock or other securities;
(f) the Company shall not sell, issue or authorize the issuance of (i) any capital stock or other security, (ii) any option, call, warrant or right to acquire, or relating to, any capital stock or other security, or (iii) any instrument convertible into or exchangeable for any capital stock or other security;
(g) neither the Company nor any of the Shareholders shall amend or permit the adoption of any amendment to the Company articles of incorporation or bylaws, or effect or permit the Company to become a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;
(h) the Company shall not form any subsidiary or acquire any equity interest or other interest in any other Entity;
(i) the Company shall not make any capital expenditure, except for capital expenditures that, when added to all other capital expenditures made on behalf of the Company during the Pre-Closing Period, do not exceed $10,000 in the aggregate;
(j) the Company shall not (i) enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any material Contract, or (ii) amend or prematurely terminate, or waive any material right or remedy under, any material Contract;
(k) the Company shall not, other than in the ordinary course of business consistent with past practice (i) acquire, l...
Operation of the Business of the Company. Except as described in Section 5.2 of the Disclosure Schedule, as required by applicable Law or as expressly provided for by this Agreement, or with the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, the Company will conduct and will cause each of its Subsidiaries to conduct its operations in all material respects according to its ordinary course of business consistent with past practice, and the Company will use and will cause each of its Subsidiaries to use reasonable best efforts to preserve intact its business organization and to preserve the present relationships with those Persons having significant business relationships with the Company or any such Subsidiaries. Without limiting the generality of the foregoing, except as set forth in Section 5.2 of the Disclosure Schedule, as required by applicable Law or as expressly provided for by this Agreement, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, without the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed), the Company will not and will not permit any of its Subsidiaries to:
(a) (i) adopt any amendments to its certificate of incorporation or bylaws (or other similar governing documents) or (ii) hold any annual or special meeting of the stockholders of the Company or file, mail or otherwise distribute any proxy solicitations or statement in respect thereof (other than, with respect to clause (ii), in connection with the Company’s annual meeting of stockholders for 2016, provided that (A) only matters that would not require the filing of a preliminary proxy statement under SEC regulations are presented for approval at such meeting and (B) the proxy statement in respect of such meeting is not filed, mailed or otherwise distributed prior to November 5, 2016);
(b) issue, sell, grant options or rights to purchase, pledge, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, any Company Securities or securities of any Subsidiary of the Company, other than Company Shares issuable (i) in accordance with the Company ESPP terms as in effect on the date of this Agreement, (ii) upon exercise of Company Options outstandin...
Operation of the Business of the Company. From and after the date hereof until the Closing Date, the Seller shall cause the Company to:
(a) operate its business only in the usual, regular and ordinary manner and, to the extent consistent with such operation, to (i) preserve the present business organization intact, (ii) use its best efforts to keep available the services of its present officers and significant employees, and (iii) use its best efforts to preserve the present business relationships with customers, suppliers, and others having business dealings with the Company;
(b) maintain its books, records and accounts in the usual, regular and ordinary manner on a basis consistent with prior periods;
(c) perform all of its material obligations without material default;
(d) neither (i) merge with or into, consolidate or otherwise combine with, or acquire all or substantially all of the stock or assets of, any other entity; nor (ii) sell, lease or otherwise transfer any significant part of its assets other than in the ordinary course of business consistent with past practice;
(e) neither (i) change the number of shares of capital stock or other equity securities issued and outstanding nor (ii) grant any option, warrant, or other right to purchase or to convert any obligation into shares of stock; and
(f) neither declare, pay or make any dividend or other distribution or payment in respect of the outstanding shares of capital stock of the Company, nor purchase, redeem or otherwise acquire any shares of capital stock of the Company.
Operation of the Business of the Company. 7.2.1 Between the date of this Agreement and the Closing Date, the Company will, and will cause each Company Subsidiary to:
(a) conduct its business only in the ordinary course of business;
(b) use its best efforts to preserve intact its current business organization and business relationships, including, without limitation, relationships with suppliers, manufacturers, customers, landlords, creditors, officers, employees and agents;
(c) not to incur any capital expenditures in excess of US $25,000;
(d) not make or declare and dividends or other distributions payable to shareholders or other Persons; and
(e) otherwise report periodically to the Acquiror concerning the status of its business, operations, and finances.
7.2.2 Notwithstanding the foregoing, between the date of this Agreement and the Closing Date, the Company will not, and will cause each Company Subsidiary not to, directly or indirectly, without the prior written consent of the Acquiror, engage in any transaction with, or enter into any agreement with, the Company or any Company Subsidiary, any officer, director or stockholder of the Company or any Company Subsidiary, or any Affiliate or "associate" (as such term is defined in Rule 405 of the Commission under the Securities Act) of any such Person.
Operation of the Business of the Company. If the Closing does not occur on the date of this Agreement, between the date of this Agreement and the Closing Date, Seller will, and will cause the Company to:
(a) Conduct the business of the Company only in the Ordinary Course of Business;
(b) Use the Best Efforts of the Company to preserve intact the current business organization of the Company, keep available the services of the current officers, employees, and agents of the Company, and maintain the relations and good will with suppliers, customers, landlords, creditors, employees, agents, and others having business relationships with the Company;
(c) Confer with Buyer concerning operational matters of a material nature; and
(d) Otherwise report periodically to Buyer concerning the status of the business, operations, and finances of the Company.
