Operation of the Business Prior to Closing. Between the date of this Agreement and the Closing Date, except as contemplated in this Agreement, any of the other Acquisition Documents or as set forth in Schedule 5.14, or unless Buyer shall otherwise agree in writing (which consent shall not be unreasonably withheld or delayed), Seller shall use commercially reasonable efforts to:
(a) operate the Business in the ordinary course of business in all material respects;
(b) maintain the tangible assets that are Transferred Assets as a whole in all material respects in at least as good condition as they are being maintained on the date hereof, subject to normal wear and tear;
(c) (i) not sell, assign, license or transfer any of the Transferred Assets, except transfers of immaterial Transferred Assets, sales of Business Inventory in the ordinary course of business and licenses of the Transferred Assets pursuant to non-exclusive licenses with third parties in the ordinary course of business and (ii) not permit any of the Transferred Assets to be subjected to any Lien, other than the Permitted Liens;
(d) not fail to pay or discharge when due any Liability of which the failure to pay or discharge would cause any material damage or loss to the Transferred Assets, taken as a whole;
(e) not amend any material term of or terminate any material Transferred Contract, other than in the ordinary course of business;
(f) not initiate any Proceeding that relates exclusively to the Transferred Assets;
(g) not make any material change in its accounting principles, methods or practices as they relate to the manner in which Seller keeps its accounting books and records relating to the Business, except for (i) any such change required by a change in GAAP or (ii) any change resulting from the preparation or audit of the Business Financial Statements;
(h) not grant to any Business Employee any increase in compensation or in severance or termination pay, grant any severance or termination pay, or enter into any employment deferred compensation agreement or any similar agreement with any such employee, except as may be (i) required under Applicable Law, Seller’s termination policy (whether existing as of the date hereof or adopted hereafter) or any employment or termination agreement in effect on the date hereof or (ii) in the ordinary course of business; and
(i) not enter into any agreement to take any action that would violate in any material respect any of the foregoing.
Operation of the Business Prior to Closing. (a) To the extent permitted by applicable Law, between the date of this Agreement and the Closing, Seller shall (i) conduct the Business only in the ordinary course of business; (ii) use its commercially reasonable efforts to preserve intact its current business organization, keep available the services of its officers, employees and agents and maintain its relations and good will with suppliers, customers, landlords, creditors, employees, agents and others having business relationships with it; (iii) continue to collect its accounts receivable in the ordinary course of business and shall not take any action to accelerate, settle, discount, factor, or sell any such accounts receivable; (iv) continue to invoice its customers in the ordinary course of business and shall not take any action to accelerate, settle, discount, factor, or sell the right to invoice or otherwise collect payment from such customers; (v) confer with Buyer prior to implementing operational decisions of a material nature; and (vi) at the request of Buyer, report periodically to Buyer concerning the status of the Business and its operations and finances.
(b) Except as otherwise expressly permitted herein, between the date of this Agreement and the Closing Date, Seller shall not, without the prior written consent of Buyer, (i) take any affirmative action, or fail to take any reasonable action within its control, as a result of which any of the representations and warranties in Article 2 would become untrue or inaccurate; (ii) make any modification to any Contract or Governmental Permit included in the Purchased Assets; or (iii) enter into any compromise or settlement of any litigation, proceeding or governmental investigation relating to the Purchased Assets, the Business or the Assumed Liabilities.
Operation of the Business Prior to Closing. Except (i) as expressly contemplated by this Agreement, (ii) as set forth in Section 3.10 of the Disclosure Letter, (iii) as required by applicable Law or Data Security Requirements, or (iv) as approved in advance by Investors (which approval shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement through the Closing, the Company shall, and shall cause its Subsidiaries to, operate in the ordinary course of business in all material respects and use commercially reasonable efforts to preserve intact in all material respects its current business organization, ongoing businesses and significant relationships with third parties. Except (1) as expressly contemplated by this Agreement, (2) as set forth in Section 3.10 of the Disclosure Letter or (3) as required by applicable Law or Data Security Requirements, from the date of this Agreement through the Closing, the Company and its Subsidiaries, without the prior written consent of Investors (which consent shall not be unreasonably withheld, conditioned or delayed), shall not:
(a) declare, or make payment in respect of, any dividend or other distribution upon any shares of Common Stock or other capital stock or equity interest of the Company;
(b) redeem, repurchase or acquire any shares of capital stock or other equity securities of the Company or any of its Subsidiaries, other than (i) repurchases of shares (A) approved by the Board of Directors and publicly announced prior to the date hereof, (B) made in an “open market” transaction at the then-prevailing price or through an “accelerated share repurchase” on customary terms or (C) from employees, officers or directors of the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice pursuant to any of the Company’s agreements or plans in effect as of the date hereof and (ii) shares withheld on the vesting of employee stock awards;
(c) authorize, issue or reclassify any capital stock, or securities exercisable for, exchangeable for or convertible into shares, of the Company or any of its Subsidiaries other than (i) the authorization and issuance of the shares contemplated by this Agreement and (ii) issuances pursuant to any of the Company’s agreements or plans in effect as of the date hereof of shares, or securities exercisable for, exchangeable for or convertible into shares, of the Company to (A) officers or directors of the Company or any of its Subsidiaries in the ordinary course of...
Operation of the Business Prior to Closing. Except for actions taken pursuant to the prior written consent of Buyer, Seller from the date of this Agreement until the Closing will:
(a) conduct the Business in the ordinary course;
(b) not transfer any of the Acquired Assets, other than in the ordinary course of business;
(c) continue to meet the contractual obligations of, and pay obligations relating to, the Business as they mature in the ordinary course; and
(d) maintain in the ordinary course the business relations of Seller with its suppliers, business customers and others with whom it has business relations in connection with the Business.
Operation of the Business Prior to Closing. Seller hereby agrees, from the date of execution of this contract to the date of Closing, to carry on the business activities and operations fo the Business diligently and in substantially the same manner as has been customary in the past, and shall not remove any item with the exception of product inventory sold in the normal course of business.
Operation of the Business Prior to Closing. Except where not Material and except for actions taken pursuant to the prior consent of Buyer, Sellers from the date of this Agreement until the Closing will:
(a) conduct the Business in the ordinary course;
(b) not transfer any of the Acquired Assets;
(c) continue to meet the contractual obligations of, and pay obligations relating to, the Business as they mature in the ordinary course; and
(d) maintain in the ordinary course the business relations of Sellers with their suppliers, business customers and other with whom they have business relations in connection with the Business.
Operation of the Business Prior to Closing. Except where not Material and except for actions taken pursuant to the prior consent of Buyer, Seller from the date of this Agreement until the Closing will: (a) conduct the Norwich Plant operations and Chemical Operations in the ordinary course; (b) not transfer any of the Acquired Assets; (c) continue to meet the contractual obligations of, and pay obligations relating to, the Norwich Plant operations and Chemical Operations as they mature in the ordinary course; and (d) maintain in the ordinary course the business relations of Seller with its suppliers, business customers and others with whom it has business relations in connection with the Norwich Plant operations and Chemical Operations.
Operation of the Business Prior to Closing. Except for actions taken pursuant to the prior written consent of Buyer, Seller from the date of this Agreement until the Closing will:
(a) conduct the Business in the ordinary course;
(b) continue to meet the contractual obligations of, and pay obligations relating to, the Business as they mature in the ordinary course; and
(c) maintain in the ordinary course the business relations of Seller with their suppliers, business customers and other with whom they have business relations in connection with the Business.
Operation of the Business Prior to Closing. Except for actions taken pursuant to the prior written consent of Buyer, Seller and Seller's Affiliates from the date of this Agreement until the Closing will: (a) conduct the Business in the ordinary course, including without limitation repairing or replacing any Equipment that is currently used in the Business that is damaged or that is destroyed due to an event that is customarily insured against; (b) not transfer any of the Acquired Assets, other than in the ordinary course of business; (c) continue to meet the contractual obligations of, and pay obligations relating to, the Business as they mature in the ordinary course; and
Operation of the Business Prior to Closing. To the extent permitted by applicable Law, between the date of this Agreement and the Closing, Seller shall (i) conduct the Business only in the ordinary course of business; (ii) use its commercially reasonable efforts to preserve intact its current business organization, keep available the services of its officers, employees and agents as relates to the Business and maintain its relations and good will with suppliers, customers, landlords, creditors, employees, agents and others having business relationships with it as relates to the Business; (iii) continue to collect its accounts receivable in the ordinary course of business and shall not take any action to accelerate, settle, discount, factor, or sell any such accounts receivable; (iv) continue to invoice its customers in the ordinary course of business and shall not take any action to accelerate, settle, discount, factor, or sell the right to invoice or otherwise collect payment from such customers; (v) confer with Buyer prior to implementing operational decisions of a material nature; and (vi) at the request of Buyer, report periodically to Buyer concerning the status of the Business and its operations and finances.
